HE'HAT, J.—Dissanayake, v. Saravanaparanalhan
1963Present: Herat, J., and Abeyesundere, J.D. B. DISSANAYAKE, Appellant, andS. SARAVANAPARANATHAN, Respondent
S. C. 228/1961—D. C. Kandy, 6079/M. B.
Cheque—Dishonour—Holder a professional money lender—Failure to keep accounts—Right to sue on the cheque—Money Lending Ordinance (Cap. 80), s. 8.
Whare a cheque is dishonoured when it is presented for payment, no actioncan be maintained upon the cheque if it was given by the defendant to theplaintiff as security for a loan and the plaintiff is a professional money lenderwho has failed to maintain proper books of account as required by section 8of the Money Lending Ordinance.
-ApPTCAB from a judgment of the District Court, Kandy.
T. B. Dissanayake, with Siva Rajaratnam, for the Defendant-Appellant.
R. Gunaratne, with M. T. M. Sivardeen, for the Plaintiff-Respondent.October 24, 1963. Herat, J.—
This was an action by the plaintiff-respondent against the defendant-appellant upon a cheque for Rs. 10,000, which was alleged to have beengiven as security for a loan in respect of the said amount, given by theplaintiff-respondent to the defendant-appellant. The cheque was dis-honoured when presented for payment and hence the present action wasinstituted.
Kvlasuriya v. Per era
Among other defences the defendant-appellant pleaded that theplaintiff-respondent carried on the business of a professional money-lender and that he had failed to keep proper books of account and byreason of his non-compliance with the provisions of Section 8 of the MoneyLending Ordinance (Cap. 80), the plaintiff-respondent could not enforcethe present claim.
The learned Judge of first instance held, as a finding of fact, that theplaintiff-respondent carried on the business of a professional money lenderand also that he had failed to maintain proper books of account relatingto his money lending transactions as required by the Money LendingOrdinance. Despite the affirmative answers which the learnedJudge gave to the above questions, he, nevertheless, held that theplaintiff-respondent could have and maintain this action. The plaintiffrespondent at no time pleaded nor proved that by any inadvertence hecommitted a default in making an entry either with regard to the keepingof books of account or as regards the recording of this particulartransaction in the books of account.
According to the Judge’s finding of fact the present case is one wherethere has been a total failure on the part of a professional money lenderto keep books of account at all. It has been held by this Court in thecase of Sinnapillai v. Veercigathy and others 1 that the proviso toSection 8 (2) which gives relief in the case of a failure due to inadver-tence in the case of non-entry of a transaction has no application wherethere is a total failure to keep account books of any sort whatsoever.This is such a case and in our view the learned Judge should haveanswered the issue as to the maintainability of the action in the negative.
We therefore set aside the judgment and decree of the lower Court anddismiss the plaintiff’s action with costs. The defendant’s appeal isallowed with costs.
Abeyesundere, J.—I agree.
D. B. DISSANAYAKE, Appellant, and S. SARAVANAPARANATHAN, Respondent