009-NLR-NLR-V-36-ARUNASALAM-CHETTIAR-v.-ARUNASALAM-CHETTIAR.pdf
?£A.£pONELL C.J.—Arunasalam Chettiar v. Arunasalam ChetUar 40
1934Present: Macdonell CJ. and Garvin S.PJ.
ARUNASALAM CHETTIAR v. ARUNASALAM CHETTIAR.
153—D. C. (Inty.) Colombo, 51,666.
Costs—Plaintiff’s claim admitted and sum of money deposited in settlement—Costs of action—Discretion of trial Judge—Material for exercise ofdiscretion—Civil Procedure Code, s. 413.
Where, after an action has been filed, the defendant brings into aCourt a sum of money in settlement of the claim and the plaintiffaccepts the amount, he should move the Court in terms of section 413of the Civil Procedure Code and obtain judgment accordingly.
The discretion vested in a trial Judge to deprive a successful party ofhis costs can be exercised only where there is sufficient material formaking such an order.
PPEAL from an order of the District Judge of Colombo.
Hayley, K.C. (with him N. Nadarajah and Wikramanayake), for plaintiffappellant.
H. V. Perera (with him Chelvanayagam), for defendant, respondent.
Cur. adv. vult.
February 16, 1934. Macdonell C.J.—
In this case Ramasamy Chettiar had died in December, 1932, owingat the time of his death Rs. 3,600 to the plaintiff who also is a Chetty.The defendant was the paid servant of the deceased Ramasamy, and afterhis death seems to have managed his estate on behalf of the widow andchildren resident in India. The defendant applied for letters of adminis-tration to the estate of Ramasamy Chettiar at a date which is not givenbut which must have been within a very few days of his death. He wentto the plaintiff and on December 7 paid him interest on the Rs. 3,600due from the deceased, but said that he could not then pay the wholedebt. The plaintiff thereupon demanded interest at 12 per cent, on thisRs. 3,600 to which the defendant did not agree. The finding of the learnedtrial Judge was that there was no agreement to pay 12 per cent, nor anycustom between Chetties, as these parties were, of paying that rate onsuch a loan, but only a custom of paying a rate 1 anna less than thecurrent rate of interest whatever that might be, but the learned Judgedid not find what that current rate was. There is a certain amount ofevidence to show that the defendant at this time was acting as executorde son tort of the estate of the deceased Ramasamy Chettiar. His pay-ment of interest to the plaintiff on December 7 coupled with the state-ment that he had recovered this amount, evidently from a debtor ofthe deceased Chetty, is evidence in that direction. There is also evidencethat he was paying out what was due from the deceased's estate, whichpiece of evidence I cannot find to have been cross-examined with a viewto showing that it was based on heresay. He must have got orders nisiand absolute for his letters of administration by January 31, 1933, at thelatest, for by then he had paid the stamp duty on those letters and couldhave obtained them at any time thenceforward.' In a letter to theplaintiff of January 23, P2, he states: " On payment of the estate duty
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50MACDONELL C.J.—Arunasalam Chettiar v. Arunasalam Chettiar.
payment to the creditors will be attended to”, evidently by himself.This evidence, and indeed his whole conduct in the matter, tends to showthat he was acting as executor de son tort of the estate of the deceasedRamasamy Chettiar, and there is no evidence anywhere to thecontrary.
On January 20, 1933, the plaintiff by PI made demand on the defend-ant for payment of this Rs. 3,600 with interest at 12 per cent, fromDecember 7, threatening action if it were not paid. On January 23 byP2 the defendant replied stating that the interest on the Rs. 3,600 was1 anna less than the “ new ruling monthly rates of interest ” and not12 per cent, as stated in plaintiff’s letter, and denied that he was liable asexecutor de son tort, adding the sentence about creditors being attendedto, which has just been quoted above. The plaintiff replied the same day,"January 23, by P3 reiterating his demand for interest at 12 per cent, andfor payment of the principal Rs. 3,600. He also added that unless thesum was paid immediately action would be instituted. The defendantdid not reply to this letter or do anything and, as has been stated, couldhave obtained his letters as administrator at any time on and afterJanuary 31; presumably he could also have paid the debt demanded.On February 9, plaintiff having waited over a fortnight since his lastletter to defendant, P 3, filed action claiming the Rs. 3,600 and Rs. 68.40as- interest. The defendant did nothing at all until March 13 when heseems to have paid into Court the sum of Rs. 3,653.83 or Rs. 14.57 lessthan the plaintiff claimed, and on March 14, his Proctors wrote to theplaintiff’s Proctor P4 stating that he had brought this sum to the creditof the case against him “ in full settlement of the amount due to plaintiffand wish to enquire from you whether your client is agreeable to acceptthe said amount in full settlement in order that I may decide whether Ishould file answer in the case or not”. The plaintiff’s Proctor repliednext day, March 15, by P5 a letter headed *s without prejudice ”, in whichhe stated “ I am prepared to accept this amount provided you pay thecosts of the action. You will note that if you had paid the amount whenI sent you the letter of demand I would not have filed action. As you byyour letter dated January 23, 1933, indefinitely postponed payment myclient*-was compelled to file this action. Under the circumstances I hopeyou will persuade your client to pay the costs and settle the matterfinally The parties seem to have appeared in Court the same day,March 15, the journal entry of which is as follows: “ Proxy and answerhied. Trial on July 14, 1933. Plaintiff is willing to accept the amountdeposited in full satisfaction of the claim only. Issue order of paymentfor Rs. 3,500 ”. Now one may notice that at this point the plaintiffmade a slip. He was taking the money in full satisfaction, and he got anorder to have nearly all of it paid out to him, and he ought to have actedunder section 413 of the Code and presented to the Court a statement thathe accepted the amount as satisfaction in full of his claim embodying thesame in a motion for judgment, whereupon the Court should have passedjudgment accordingly and directed by whom the costs of each party wereto be paid. He did not do this and the omission was a technical failureon his side. The defendant’s answer, however, does in a round-about wayraise the very point which the plaintiff ought to have raised under section
MACD ON EL.L. C.J.—Arunasalam Chettiar v. Arunasalam Chettiar. 51
413, namely, who was to pay the costs, for his prayer asks that “ theplaintiff be ordered to pay the defendant’s costs or in the alternative thathis action be dismissed with costs ”.
The parties did actually go to trial on July 14, 1933, and issues wereframed asking whether the plaint disclosed a cause of action, what wasthe rate of interest agreed upon between the parties, did defendantintermeddle in the estate of the deceased, and, if he did not, could plaintiffmaintain the action. There was also an issue asking whether plaintiffwas entitled to costs even though the money had been brought into Court.
It is unfortunate that time and money had to be wasted over thisquestion of costs which up to March 15 must have been quite a small sum.But the defendant was urgent that he should 'not be compelled to paycosts, and it was argued that the action was unnecessary and had beenbrought simply to worry him. The learned Judge in his judgment holdsin rather ambiguous language that there was this desire on the part of theplaintiff to worry defendant, but admits that there is no absolute proof ofthis on the evidence. If there is no proof of it on the evidence then theallegation of desire to worry the defendant fails, but the learned Judge inhis judgment went further and held that the defendant had not acted asexecutor de son tort “ but merely acted as the paid servant of the familyof whose head he had been attorney when Ramasamy Chettiar was alive.He was no wrong-doer intermeddling with the estate”. In passing,I think all parties have been misled by the word ‘tort’. To be executorde son tort does not necessarily imply that you have done anythingmorally wrong, it simply means that you have been acting as executorof an estate without a legal right to that position and that having soacted you are liable as if you had been executor with a legal right to thatposition. I have indicated earlier in this judgment that the evidenceclearly points to the defendant having acted as executor de son tort andif so the finding of the learned Judge to the contrary must be set aside ascontrary to that evidence, and also as based upon a misapprehension ofthe law relating to that class of executor.
If so, the position is this. The defendant by his payment on March 13of the full amount less Its. 14.57 admitted that the plaintiff’s claim savefor a minute fraction was well founded. The plaintiff had waited morethan a fortnight since his second letter of January 23, P3, before he filedaction, the department thereafter waited nearly 5 weeks before he didanything. He then paid money into Court admitting, as I have said,that the plaintiff’s claim save for a small fraction was correct. It reallyseems to me on these facts that he has brought the litigation on himselfby his delay, and if so, I think the plaintiff should be entitled to his costs.The plaintiff did make a technical slip in not asking for judgment in termsof section 413 on March 15, when he accepted the money in full settlement,but the defendant’s conduct in filing answer, and later in requiring issuesto be framed, really though not in name, was an application for an orderunder that very section. This, I think, cures the slip which the plaintiffhad made.
It was urged upon us that costs are a matter in the discretion of thetrial Judge and that with that discretion we must not interfere. Costsare in the discretion of the trial Judge, but only when the judgment from
;-2Ramalingam Pillai v. Wimalaratne.
which the order as to costs flows is admitted to be correct. Or puttingit another way, there is a discretion to deprive a successful party of hiscosts when there exists material for the exercise of that discretion. Butthe material must exist in fact, otherwise there is no ground for theexercise of the discretion. Now the material put forward here as groundfor the exercise of the discretion is in the first place that the defendant didnot intermeddle with the estate of the deceased Ramasamy, or makehimself executor de son tort thereof. With all respect, the evidence isagainst this, as a correct application of the law would have shown.Another ground put forward is that defendant did not agree to pay 12per cent. But there is no finding as to what the rate should have been,and the defendant by his payment into Court admitted a very large partof the claim. Another ground put forward is that the plaintiff was theparty to blame for the litigation. Again the facts are against this. Thedefendant who beyond question was executor de son tort delayed un-reasonably in coming to a settlement and has himself to blame that heever had to come into Court at all. Now these are the grounds assignedas being material for the exercise of discretion as to costs, but unfortu-nately I am compelled to hold that those grounds do not exist, that thefinding that they do exist is erroneous. If so, then the material for theexercise of discretion does not exist either. If the order below as to costsmust be set aside, this is not because the Court here is interfering withand discretion vested in the Court of trial, but because the judgmentof the Court of trial, which is the sine qua non of such discretion, mustitself be set aside. Remove the foundation and you remove the super-structure also.
For the above reasons I think this appeal should be allowed with costs,the decree below set aside and a decree substituted therefor giving theplaintiff formal judgment under section 413 for Rs. 3,653.83 and costs.
Garvin S.P. J.—I agree.
Appeal allowed.