098-NLR-NLR-V-22-BHAI-v.-JOHN.pdf
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Present: Shaw J.
BHAI v. JOHN.
52—C. JR. Colombo, 71,575..
Money Lending Ordinance, #0. 2 0/1915, 0. 8y-15n2ne$ mode tn accountbook several months after the date of transaction—Action not main-tainable by money lender—Proof of inadvertence.
Where a money lender entered in his 'account book particularsregarding a loan on a promissory note six months after the dateof the transaction—
Held, that he had not kept his books in conformity with theprovisions of the Ordinance, and that he was not entitled toenforce his claim, unless he can claim the benefit of the provisoto section 8 of the Ordinance.
Where the Commissioner held without any evidence that thedefault of the money lender was due to inadvertence within themeaning of the proviso and entered judgment for the plaintiff, theSupreme Court sent the case back for evidence on the point.
"The plaintiff does not say that he did not know that the pro-visions of the Money Lending Ordinance, or that there was anyaccidental cause which prevented the account being entered in abook in the way the Ordinance provides that it should be entered."
? |THE facts appear from the judgment.
Bajakariar, for the appellant.
J.8. Jayamtrdene, for the respondent.
July 30,1920. Shaw J.—
In this case the plaintiff, who is an Afghan money lender, sued thedefendant to recover a sum of 'Rs. 200, the balance due on a promis-sory note dated May 5, 1919. The case raises a point under theMoney Lending Ordinance, No. 2 of 1918. It appears frbm the evi-dence of the moneylender that the entries in the book he produced,regarding this loan were not made at the time the promissory notewas given, but were made at a subsequent date. The plaintiffhimself stated in his evidence that he had kept the book producedfor two or three months. This was in January, 1920, and thepromissory note was given in May, 1919.
It is also clear on booking at the book he produced that all theentries with regard to the transaction from May 4 to October 20'were made at the same time and in the same ink. It is quite clearto me that a book kept in this way is not kept in conformity withthe provisions of the Ordinance.
1920.
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1920.Shaw J.Bhai v. John
The plaintiff is, therefore, under section 8, sub-section (2), dis-entitled to enforce any claim in respect of any transaction in relationto which the default in the keeping of books and entry of the accountsshall have been made. The Commissioner, however, has givenhim relief under the proviso of that section.
The proviso is that if the Judge is satisfied of two things, then hemay give relief against the-default in the keeping of books. Thesetwo things are: First, that'the default was due to inadvertence, andnot to any intention to evade the provisions of section 8 of theMoney Lending Ordinance; and, secondly, that the amount of theloan and the payments on account, &c., satisfactorily appearbyother evidence.
The Commissioner in the present case has found that the defaultwas due to inadvertence, and that the plaintiff had no intention toevade the provisions of the Money Lending Ordinance.
He has not actually mentioned in his Judgment what he foundas to the account of_ the loan and the payments on account, butI presume he is satisfied as to these by the evidence of the moneylender. ’ My difficulty in the case, however, is to see on whatfoundation the Commissioner bases his finding that the defaultoccurred through inadvertence, and without any intention to evadethe provisions of the Ordinance.
The plaintiff himself says nothing whatever about it. He doesnot say that he did nov know that the provisions of the MoneyLending Ordinance, or that there was any accidental cause whichprevented the account being entered in a book in the way theOrdinance provides that it should be entered.
However, the Commissioner thinks that the money lender wasunaware of the provisions of the Ordinance, and that when he cameto know of it he entered these transactions with the defendantand a number of other transactions on the same day, and that,therefore, his default was due to inadvertence. This may be so, andif the plaintiff had given evidence to that effect, the Commissionermight reasonably have so found. It is clear on looking at the bookthat this’transaction was not entered up until some time subsequentto October 20, 1919. It seems difficult to credit that a personcarrying on the business of a money lender should have remainedunaware of these provisions of the Ordinance until such a late date.The plaintiff might have given evidence that would satisfy theCourt that such was the case.
It is suggested that the Commissioner might have had somefacts stated to him which would Justify his finding. But if so, heought to have recorded it in his notes of the evidence. I thinkthe proper course in the present case would be for me to set asidethe Judgment appealed against and send back the case to enablethe' Commissioner to take further evidence in regard to thecircumstances under which the default was made in not keeping
a proper account of this transaction by the plaintiff, and that ifhe is then satisfied that the plaintiff has explained the default tohis satisfaction, the defendant should be allowed to call evidence,if he desires to do so, to make out the defence which he set forwardin his answer. At the time of the trial the defendant declined tocall any evidence. He appears to me to have been justified indoing so, because, so far as appears on the record of the case, theplaintiff has not explained his default in keeping the accountreferred to above. I would make the costs of this appeal costsin the cause.
1920,
Shaw
Bhai John
Sent bach