007-NLR-NLR-V-57-ARUNASALAM-CHETTIAR-Appellant-and-MURUGAPPA-CHETTIAR-Respondent.pdf
Present : Pulle J. and Swan J.
ARUNASALAM CHETTIAR, Appellant, andMURUGAPPA CHETTIAR, Respondent
• S. C. 352—D. C. Colombo, IS.106
Interest—Tender of debt due—Liability to pay interest thereafter—Minor—Debt dueto him—Mode of payment.
A debtor is not Iiablo to pay interest after ho makes tender of tho money dtioto his creditor. Where tho creditor is a minor, tho offer to pay may ho madoto tho natural guardian of tho minor, especially if tho minor is of a vory tenderago. If tho natural guardian is not tho duly appointed curator it is for himor her to take tho necessary steps to have tho appointment made.
A.
TAPPEAL from a judgment of the District Court, Colombo.
N.E. Weerasooria, Q.C., with 31. Jiamalingam, for tho dofondantappellant.
S. J. V. Ckehanayakam, Q.C., with II. Jfanicavasagar, for thoplaintiff respondent.-'..
Cur. ah’, vult.
July 19, J 954. Swas J.—
The only question to decide in this ease is whether tlie appellant, isliablo to pay the respondent, interest at the Loan Board rate as orderedby tho District Judge, or any interest at all. Tho other point taken intho petition of appeal, namely that tho respondent could not maintaintho action as there was no privity of contract between him and thoappollant was not pressed..
In Nbvomber 1929 one Vellasamy Pillai deposited with the appellantfor the benefit of the respondent who was a minor of very tender agoat tho time a sum of Bs. 11,500. The appellant agreed to hold the samein deposit for tho respondent and pay it to him togethor with what isknown as “ Chotty ” interest. On 11th August, 1932, Proctor It. Muttu-samy acting on behalf of the appellant wrote letter D5 to Sckappi Atcliythe appellant’s mother and natural guardian inquiring who was thoappellant’s lawful guardian as his client was ready and willing to payover tho money he held for the respondent’s benefit and obtain a dis-charge of his obligations. The letter ends with the following sentence :—
Kindly note that unless payment is received on or hoforo the 21stAugust my client will not pay interest thereon thereafter, and also willdeposit it in Bank ”.
To this letter Sckappi Atcliy replied through Mr. S. Krishnaswamy,Advocate, by D7 dated 2Sth September, 1932, to the effect that si 10was the guardian of her son and was willing to receive the money.
The appellant, wisely I would say, refused to pay the money to SckappiAtcliy. On 25th September, 1953, Proctor Muttusamy wrote letter DSinforming Sckappi Atcliy that his client had deposited tho sum ofIts. 13,217'42 on 10th August, 1932, in the Mercantile Bank of India. Horequested her " to obtain the appointment of a duly constituted lawfulguardian and curator, or if any has already been appointed to get thesaid guardian to appoint by special Power of Attornoy some responsibleperson in Ceylon to receive payment of the said sum of Its. 13,217-42 ”.To this letter there was no reply.
The money was not deposited in tho Bank in a separate account but(he copies produced by the Bank of tho appellant's own account showthat in July 1932 two sums of Its. 10,000/- and Its. 5,000/- were paid tothe appellant’s credit and that thereafter (here was always a balancestanding to the appellant’s credit sufficient to mee-t a demand forIts. 13,217-42..
Tho appellant appears to havo done all that was possiblo to returntho money to tho respondent, but nobody sooms to havo taken sufficientinterest in tho respondent to obtain payment. It has been contendedon behalf of tho respondent that the appollant could have filed a curator-ship caso or an ordinary action and deposited tho money in court. Kvonif tho appollant eoidd have adopted either of theso courses I do notthink I10 was under any obligation to do so. It was tho respondent smother’s duty to have taken tho necessary stops to havo a curator
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appointed. Tho basis of tlio judgment under appeal in effect is that thoappollant was under a duty to file a curatorship caso anti to deposit _tho money in court.
As regards Do it has been argued that it does not constitute a valid tenderin as much as Sekappi Atchy was not a person lawfully entitled to receivopayment on behalf of the respondent. Whon money is duo to a minorthe only person to whom an offer to pay it can be made is tho naturalguardian of the minor specially if tho minor is of a very tender age.If tho natural guardian is not the duly appointed curator it is for himor her to take the necessary steps to have tho appointment made. VandcrLinden in his Institutes of the Laws of Holland (Cap 4, Section 1) says :—
“This parental power with us is possessed not only by tho fatherbut also by the mother, and after the death of tho father by' tho motheralone. It consists of the entire direction of the maintenance andeducation of their children, and the management of their estates. ”
In JFtamalingam Chettiar v. 3foh anted Adj ward1 Soertsz S.P.J. relyingupon this passage held that in a case where certain minors were sued fordamages on a breach of a covenant to warrant and defend title by then-deceased father notice of action given by the vendee to their mother wassufficient notice to them, sis tho mother was their natural guardian.
I would therefore hold that the offer to pay Sekappi Atchy was agood tender to tho respondent. In the result I would allow the appeal.Judgment will be entered for the respondent for Rs. 13,217-.42 and halfcosts of action. The appellant will bo entitled to the costs of appeal.
Piele J.—I agree.
Appeal allowed.
(193S) 41 X. L. R. 49.