DAVID DE SILVA, Appellant, and RAMANATHAN CHETTIAR and another, Respondents

087-NLR-NLR-V-65-DAVID-DE-SILVA-Appellant-and-RAMANATHAN-CHETTIAR-and-another-Respondents.pdf


David de SUva v. Ramanathan Ghetiiar
409
i860Present : Basnayake, C.J., and T. S. Fernando, J.
DAVID DE SILVA, Appellant, and RAMANATHAN CHETTIARand another, Respondents
S. C. 150—D. C. (Inty.) Kandy, 1602jWBRegistration of business name—Change in particulars caused by registration of
other biesmess occupations—Default in registration of such change—Relief
on ground that it is just and equitable—Business Names Ordinance (Gap 120),
ss. 4, 7, 8, 9—Citizenship—British Nationality Act of 1948.
Oivil Procedure Code—Section 148—Impropriety of frequent adjournments of trials.
The plaintiffs were two professional money-lenders carrying on business inpartnership under a business name which was registered on 17th July 1943.They instituted the present action on 24th November 1950 to recover a sumof money due on a bond dated 17th November 1947. In the course of a secondtrial, it was admitted by the 1st plaintiff in cross-examination that the plain-tiffs commenced other business occupations of Pawn Brokers and Radio Serviceon 5th July 1946 and 13 October 1948 respectively, at other separate places.In view of this evidence, Counsel for the defendant (appellant) suggestedthe following issues :—
“ (13) Have the plaintiffs—
(а)faded to furnish the Registrar of Business Names with astatement of changes in the particulars required under the Ordinance,with respect to the change of business to Radio Service and PawnBrokers carried on under this business name ; and
(б)did they notify the Registrar of the change of their nationality ?
(14) If the plaintiffs are in default, can they enforce any claim inrelation to this business ? ”
Consequently, the plaintiffs lodged mi application for relief under the provisoto section 9 of the Business Names Ordinance.
Counsel for the appellant did not press the contention that the plaintiffswere required by law to notify a change of nationality.
Held, that even if, in contravention of section 7 of the Business NamesOrdinance, the plaintiffs defaulted in respect of notifying the change in theparticulars of the registration which related to the nature of their other busi-ness occupations, the defendant knew the members of the firm with whomhe was dealing and no prejudice was caused to him. In the circumstancesit would be just and equitable to grant relief in terms of the proviso to section*9 of the Business Names Ordinance.
Per Baswayajce, C.J.—“ The disability imposed by the section (section 9of the Business Names Ordinance) is only in respect of any contract made orentered into by the defaulter at any time while he is in default … I amunable to find any provision of the Ordinance which they (the plaintiffs) hadfailed to comply with at that time. ”
Observations by Bosnayake, C. J., on the proneness of Judges of first instanceto grant adjournments of trials without due regard to the provisions ofsection 143 of the Civil Procedure Code.
LXV 18
2R 15X82—1,835 (1/84)
4 10
BASltAYAKE, C.J.—David de 8Hvo t>. BamanaAe,»» Oha&ior
_/.PPEAL from an order of the District Court;, Kandy.
3. W. Jayetoardene, Q.C., with C. 0. Weeramantry Mid L. C.Seneviraine, for Defendant-Appellant.
0. Ranganathan, for Plaintiffs-Bespondents.
Cur. adv. vuU.
June 23, 1960. Basstayake, C.J.—
The plaintiffs S. P. B. M. M. Bamanathan Chettiar and S. P. B. M. M.Nadar a] an Chettiar are two professional money-lenders carrying onbusiness in partnership under the business name of S. P. B. M. M. B. M.Bamanathan Chettiar <fe Brother. They instituted this action as farback as November 1950 to recover a sum of Bs. 10,000 and accruedinterest thereon due on a Bond No. 1405 dated 17th November 1947attested by M. A. M. Naheem, Notary.
On 3rd December 1952 judgment was given for the plaintiffs. Thedefendant appealed against that judgment and a trial de novo was ordered.At the second trial on 22nd October 1956 while the 1st plaintiff wasstill being cross-examined counsel for the defendant suggested thefollowing issues :—•
“ (13) Have the plaintiffs—
failed to furnish the Begistrar of Business Names with a
statement of changes in the particulars required underthe Ordinance, with respect to the change of business toBadio Service and Pawn Brokers carried on under thisbusiness name ; and
did they notify the Begistrar of the change of their
nationality ?
(14) If the plaintiffs are in default, can they enforce any claimin relation to this business ? ”
Counsel for the plaintiffs objected to issue 13 {a) on the groundthat section 8 of the Business Names Ordinance imposes no obli-gation on the plaintiffs to inform the Begistrar of Business Namesof the commencement of the business of radio repairers etc. andto issue 13 (b) on the grounds that the question whether there hasbeen a change in the nationality of the plaintiffs had to be consideredand that he was not prepared to meet that issue that day. Heasked for time to “ meet *’ it, and time was granted till 7th December.On that day the trial was adjourned once more to 20th Decemberon the following ground minuted in the journal as “ Counsel statesthat they have not been able to get dates suitable to seniorcounselIt was further adjourned to 21st January 1957 on.
BA3NAYAKE, C.J.—David de Silva v. Ramanatkan Chettiar
411
which date it was once more adjourned to 22nd March. 1957.On 7th March 1957 the plaintiffs lodged an application for reliefunder the proviso to section 9 of the Business Names Ordinance.
Before I proceed to discuss the petition of the plaintiffs and the
questions arising thereon I cannot help observing that the learned Judge
has been too ready to grant adjournments of the trial in this case. Hegranted the first adjournment when an issue was raised by the defendant’scounsel. There is no need to grant an adjournment when a fresh issueis raised in the course of a trial if it is one that arises on the pleadings.In the instant case counsel for the plaintiff did not contend that theissue did not arise on the pleadings and object to it on that ground. Itis not clear what was meant by “ to meet this issue ”. The learnedJudge Was wrong in allowing the issue if it did not arise on the pleadingswithout their being amended. If it did arise on the pleadings thereWas no ground for an adjournment. Once he adopted the issue and re-corded it he should have proceeded with the trial. Having adjournedthe trial for nearly two months he continued to adjourn it for nearlythree more months on various grounds which do not appear to me tobe sufficient. I cannot help remarking that, judging by the appealsthat have come up for hearing, judges of first instance are too proneto grant adjournments of trials without due regard to the provisionsof section 143 of the Civil Procedure Code. The proviso to that sectionrequires that once the hearing of evidence has begun, the hearing of theaction shall be continued from day to day until all the witnesses in atten-dance have been examined, unless the court finds the adjournmentof the hearing to be necessary for reasons to be recorded and signedby the Judge. This requirement appears to be observed more in thebreach by Judges of first instance. It is important that legal proceedingsshould be conducted by judges with due regard to the provisions ofthe Civil Procedure Code. The appellate court attaches to findingsof fact of a judge of first instance considerable weight on the groundthat he has had the advantage of seeing and hearing the witnesses andof being in the atmosphere of the trial—an advantage which judges ofappeal do not enjoy. If a trial is not conducted in accordance withthe provisions of the Code and is subject to long adjournments, andthe evidence of the witnesses is not recorded without interruption butonly at intervals, then the appellate court cannot attach the same weightto findings of fact of the trial judge as it would attach to findings arrivedat at a hearing where he has heard the evidence from day to day andwithout interruption, because the adjournments, be they long orfrequent, will have robbed him of that advantage on which theappellate court places reliance.
It is inevitable that where witnesses have given evidence not one afterthe other but at intervals spread over a long period the impressioncreated on the judge’s mind by those who gave evidence at the earlypart of the trial is not so vivid as the impression created by those whogave evidence at the late Btages and nearer the time at which he comesto write his judgment. This Would place one party or the other at
BASNAYAKE, C.J.—David de Silva v. RamtmaAan Chettiar
412
a disadvantage which might hare been avoided if the trial proceededfrom day to day. Both oounsel and judges of first instance shouldtherefore in the interest of the parties strive to avoid adjournments of
trials once begun.
I shall now revert to the petition. In that petition the plaintiffs
stated—
(a) that they have been carrying on the business of money lendingat No. 50 Brownrigg Street, Kandy, since 12th July 1943 underthe business name of t! S. P. B. M. M. R. M. Ramanathan Chettiar &Bro. ” and that the business name was registered on 17th July 1943.In that certificate of registration the following particulars are given :—
Business Name : SP. RM. M. RM. Ramanathan Chettiar & Bro.
The General Nature of Business : Money Lending, Financiers and
Landed Proprietors.
The Principal Place of Business : No. 20A, Brownrigg Street,
Kandy.
Names of Individuals who are Part-ners in the Firm
1 SP. RM. M. Ramanathan
| Chettiar
>SP. RM. M. Nadarajan
Chettiar alias MeiyappaChettiar.
Nationality :British
Usual Residence of every Individual : No. 20A, Brownrigg Street
Kandy
The other Business Occupation (if
any) of every Individual Partner > Nil.in the FirmJ
that they are Indian citizens ;
that they commenced another business of Bankers and PawnBrokers at No. 58 Main Street, Trincomalee. on 5th July 1946 underthe same business name which was later transferred to No. 129 CentralRoad, Trincomalee, and registered the particulars of that businessas follows :—
General Nature of Business :Principal Place of Business :
Partners
fS.
Is-Bankers and Pawn Brokers.
No. 58 Main Street, Division No. 6,
Trincomalee.
P. R. M- M. Ramanathan Chettiar
P. R. M. M. Natarajan Chettiar.
Nationality:British
Usual Residence of Partner : Natharasankottai, Sivagange Talug,
Ramnad District, South India.
The other Business Occupation (if'']
any) of every Individual Partner V Nil.in the FirmJ
BASNAYAKE, C. J.—David de Silva v. Ramanathan Chettiar
413
(d) that on 18th July 1956 they ceased to carry on the said businessat Trincomalee and gave notice of cessation to the Registrar of Business*Names of the Eastern Province.
_ (e) that on 13th October 1948 they commenced another businessof radio repairers and dealers in radio and electrical goods under thebusiness name of “ Central Radio Service The particulars relatingto that business name are as follows :—
Business Name :Central Radio Service
General Nature of Business : Repairing Radio and Dealers in
Radio, Electrical Goods, etc.
Principal Place of Business : No. 112 Trincomalee Street, Kandy.
Names of Partners :Suna Pana Rawenna Mana Mena Ramanathan
Chettiar.
Suna Pana Rawenna Mana Mena NadarajanChettiar alias Meiyappa Chettiar.
Nationality :British.
Usual Residence of Individual"Partners
No. 50 Brownrigg Street, Kandy.
Other Business Occupation ofevery Individual Partner
1
Partner in business of S. P. R..M. M. R. M. RamanathanChettiar andBro.
(/) that on 30th August 1952 they ceased to carry on that businessand gave due notice of cessation on 28th November 1952.
(<7) that they did not notify the Registrar of Business Names of thechanges in the particulars of their first registered business name inconsequence of their—
carrying on the new business of bankers and pawn brokers
at Trincomalee.
commencing business as radio repairers and dealers in radio
and electrical goods.
(h) that the reasons for their failure were—
that they were not aware that the particulars of the said
two businesses had to be notified to the Registrar ofBusiness Names, Central Province, as a change in respectof their business of money lending.
that they considered these two subsequent businesses
not as the same business as that of money lending.
inadvertence and ignorance of the provisions of the
Business Names Ordinance. (i)
(i) that they have since notified the various changes referred to above.
2°K. 15182 (1/64)
414BASNAYAJK33, C.J.—David de Silva, v. Ramanathan Ohettiar
Now the provision of the statute that arises for consideration issection 9 of the Business Karnes Ordinance which reads:
Where any firm or person required by this Ordinance tofamish a statement of particulars or of any change in particulars inrespect of any business shall have made default in so doing, then theright of that defaulter under or arising out of any contract in relationto that business made or entered into by or on behalf of such defaulterat any time while he is in default shall not be enforceable by actionor other legal proceeding either in the business name or otherwise :
Provided that—
(а)the defaulter may apply to the court for relief against the dis-
ability imposed by this section, and the court, on being satis-fied that the default was accidental, or due to inadvertenceor some other sufficient cause, or that on other groundsit is just and equitable to grant relief, may grant such reliefeither generally, or as respects any particular contracts,on condition of the costs of the application being paid bythe defaulter, unless the court otherwise orders, and on suchother conditions, if any, as the court may impose ; but suchrelief shall not be granted except on such service and suchpublication of notice of the application as the court mayorder, nor shall relief be given in respect of any contractif any party to the contract proves to the satisfaction of thecourt that, if the provisions of this Ordinance had beencomplied with, he would not have entered into the contract;
(б)nothing herein contained shall prejudice the rights of any other
parties as against the defaulter in respect of such contractas aforesaid ;
if any action or proceeding shall be commenced by any otherparty against the defaulter to enforce the rights of suchparty in respect of such contract, nothing herein containedshall preclude the defaulter from enforcing in that actionor proceeding, by way of counterclaim, set-off or otherwise,such rights as he may have against that party in respectof such contract.
(2) In this section, “ court ” means the court in which any actionor other legal proceeding to enforce a contract is commenced bya defaulter. ”
The disability imposed by the section is wily in respect of any contractmade or entered into by the defaulter at any time while he is in default.That is what the section states and it has been so held in Englandunder the corresponding provision which is identical. (He a Debtor)1.The contract which the plaintiffs are seeking to enforce wasmade on 17thNovember 1947 before 26th January 1950 when India became a Republic
(1919) 98 L. J. K. B. 40.
BASNAYAEZE, C.J.—David de Silva v. Ramanatham Chettiar
41E
and before 13th October 1948 when they commenced the business ofradio repairers and dealers in radio and electrical goods under the businessname of " Central Radio Service ”, but after otk July 1946 when theycommenced business at No. 58 Main Street, Division No. 6, Trincomaleeas Bankers and Pawn Brokers. The question is whether the plaintiffshad failed to carry out any duty imposed on them by the Ordinanceat the time the defendant executed the bond sued on. I am unableto find any provision of the Ordinance which they had failed to complywith at that time. The Trincomalee business was registered as an inde-pendent business of “ Bankers and Pawn Brokers ” carried on atTrincomalee. The particulars which a firm or person is required tonotify under the Ordinance are stated in section 4 which reads:
“ (1) Every firm or person required under this Ordinance to beregistered shall furnish, by sending by post or delivering to the Regis-trar at the register office in that part of Ceylon in which the principalplace of business of the firm or person is situated, a statement in writingin the prescribed form containing the following particulars :—
(a) the business name ;
the general nature of the business ;
the principal place of business ;
where the registration to be effected is that of a firm, the present
name (in full), any former name (in full), the nationality,and where that nationality is not the nationality of origin,the nationality of origin, the usual residence, and the otherbusiness occupation, if any, of each of the individuals whoare partners, and the corporate name and registered orprincipal office of every corporation which is a partner ;
where the registration to be effected is that of an individual,
the present name (in full), any former name (in full), thenationality, and if that nationality is not the nationalityof origin, the nationality of origin, the usual residence, andthe other business occupation, if any, of such individual;
where the registration to be effected is that of a corporation,
its corporate name and registered or principal office andthe names and nationalities of its directors;
if the business is commenced after the passing of this Ordinance,
the date of the commencement of the business.
(2) Where a business is carried on under two or more businessnames, each of those business names must be stated. ”
It is contended that on the registration of the business carried onat Trincomalee the Registrar should have been notified of the changein the particulars registered in the cage which requires “ the other busi-ness occupation, if any, of each of the individuals who are partners ”to be stated. The word ** nil ” appeared in that cage originally and wasnot altered at the time the bond Was signed. I do not think that theTrincomalee business can be said to be the other business occupation
416
T. S. FERNANDO J.—David de Silva v. Bamanathan Chettior
of each of the individuals who are partners That was not theindividual business of any of the two partners. It was a partnershipbusiness which was separately registered. The information required bysection 4 (1) (d) of the Business Names Ordinance is in regard to businesscarried on by the partners separately as individuals. The section does notrequire a partner to state the names of all partnerships of which he isa partner for the reason that such a partnership is prohibited from carryingon business under a business name without registering it. On theother hand it requires an applicant for registration to state “ the corporatename and registered or principal office of every corporation of whichhe is a partner The Trincomalee business was not a corporationat the relevant date. At the time of the execution of the bond soughtto be enforced the plaintiffs were therefore not in default and are notprevented by section 9 of the Ordinance from proceeding with theiraction against the defendant.
Before parting with this judgment I should like to add that evenif there had been a failure in respect of notifying a change of the parti-culars to be entered in cage 10 of the prescribed form (Vol II SubsidiaryLegislation, page 11, 1938 Edition), this is eminently a case in whichrelief should be granted. The fact that the application is made longafter the commencement of the action does not prevent the court fromgranting relief in a suitable case (Hawkins <£ another v. JDuche In reShaer 2). The section gives the court very wide powers of granting reliefto persons in default. Where, as in the instant case, the defendant wasnot misled by the default and knew the members of the firm withwhom he was dealing it would be most unjust and inequitable to denythe plaintiff relief more especially when the defendant’s objection istaken so long after the institution of the action and at a second trial,and even then not in limine (Weller v. Denton3).
I would therefore dismiss the appeal with costs.
T. S. Fernando, J.—
This appeal seeks to question the correctness of an order made bythe Additional District Judge of Kandy granting to the plaintiffs inan action on a mortgage bond relief under the proviso to Section 9 ofthe Business Names Ordinance of 1918 (Cap. 120). This Ordinancehas been modelled on the Begistration of Business Names Act, 1916,of England, and Section 9 of the Ordinance as enacted in 1918 providedthat where any firm or person required by the Ordinance to furnish astatement of particulars or of any change in particulars in respect ofany business shall have made default in so doing, then the rightsof that defaulter under or arising out of any contract in relationto that business made or entered into by or on behalf of such de-faulter at any time while he is in default shall not be enforceable byaction or other legal proceeding either in the business name or other-wise. Commenting on this section as it then was, Bertram C.J., in
1 {1921) 3 K. B. 223.* (1927) 1 Oh. 36S.
* {1921) 3 K. B. 103.
T. S. FERNANDO, J.—David de Silva v. Ramanathan Ohettiar
417
Karuppen Chetty v. Harrison & Crosfield Ltd.,1 observed that the objectof the Ordinance was to prevent foreigners carrying on business inthis country and from suing in our courts under a disguise, and thatit was clearly intended that, if it came to the notice of the Court in thecourse of an action that the provisions of the Ordinance had not been_ complied with, the Court should immediately give effect to the termsof Section 9 which declares that the rights of a defaulter in such a caseshall not be enforceable. In 1935, Dalton J., in Arunachalam Chettiar v.Bamanathan Chettiar 2 pointed out that, unlike in the case of the Englishstatute, there Was no provision in our Ordinance for the Court to grantrelief in the case of a default by the plaintiff in complying with therequirements of the Ordinance. Three years later, Ordinance No. 8of 1938 was passed amending the Business Names Ordinance of 1918by the addtion of a proviso to Section 9 whereby power was given tothe court in which any action or other legal proceeding to enforce a con-tract has been commenced by a defaulter to grant relief against thedisability imposed by the section on the Court being satisfied that thedefault Was accidental or due to inadvertence or some other sufficientcause, or that on other grounds it is just and equitable to grant relief.This proviso has been successfully invoked by the plaintiffs in the
District Court, and the learned District Judge has granted relief,(1) on the ground of inadvertence and (2) that on the other groundsit is just and equitable to do so.
Learned counsel for the defendant argued before us that the grantof relief on either ground was incorrect in the circumstances of thiscase. It is therefore necessary to examine those circumstances.
This action was instituted so long ago as November 24, 1950, and itrelates to a mortgage bond of November 17, 1947, obtained in relationto a business of money-lending carried on by the plaintiffs at 20A,Brownrigg Street, Kandy. After trial the District Court on December 3,1952 entered judgment in favour of the plaintiffs but, on an appealbeing preferred, the Supreme Court on February 14, 1956 set aside thejudgment of the District Court and ordered a trial de novo. It is admittedthat the question of a default by the plaintiffs in complying with therequirements of the Business Names Ordinance did not transpire atthe first trial. The new trial commenced in the District Court on October22, 1956, and, after issues had been framed, while one of the plaintiffswas being cross-examined it was elicited that the plaintiffs had beencarrying on at times relevant to Section 9 certain other businesses atcertain places other than 20A, Brownrigg Street, Kandy, and that theyhad not furnished to the Registrar of Business Names particulars ofthese new businesses as constituting a change of particulars in relationto the business carried on at 20A, Brownrigg Street, Kandy, as requiredby Section 7 of the Ordinance. Counsel for the defendant thereuponpromptly raised the issue of the enforceability of the present action.The plaintiffs obtained time to consider the position, furnished on Febru-ary 2-2, 1957 particulars of change in respect of their money-lending1 (1022) 2d N. L. R. at 31S.‘3 (1035) 37 N. L. R. at 2G5.
418
T. S. FERNANDO, J.—David d# Silva v. Bamanathan Chetiiar
business as required by Section 7 of the Ordinance, and on March 11,1957 applied for Telief under the proviso to Section 9. In their petitionfor relief they stated that the failure to notify particulars of the changeswas due to inadvertence and to ignorance of the provisions of the
Ordinance.
The plaintiffs who are brothers had commenced at 20A, Brown-rigg Street, Kandy, on July 12, 1943, under the business name ofSP.RM. M.R.M. Raman&than Chettiar & Bro. the business of “ money-lending, financiers and landed proprietors ”, and had furnished parti-culars relating to this business as required by Section 4 of the Ordinance—see Certificate A. The contract in respect of which the present actionwas instituted was, as already indicated, one in relation to this business.On July 5, 1946, they commenced at 58, Main Street, Trincomalee andat 129, Central Road, Trincomalee two other businesses, both describedas that of bankers and pawnbrokers, under the same name, and Certi-ficates B and C respectively relate to these two businesses. Then,again, on October 13, 1948, they commenced yet another business,this time the business of “ repairing radio and dealers in radio, electricalgoods etc. ”, under the business name of Central Radio Service at 112,Trincomalee Street, Kandy—vide Certificate E. One of the particularsrequired to be furnished by Section 4 of the Ordinance is “ the otherbusiness occupation ”, if any, of each individual member of thefirm. The statement of particulars in respect of the original registra-tion of the business in relation to which the mortgage bond in suit badbeen executed is unexceptionable as at the time it was made the plain-tiffs had no other business occupation. It is contended, however,that when the plaintiffs commenced other business occupations of “ ban-kers and pawnbrokers ” and ” repairing radio and dealers in radio,electrical goods etc. ” they were required by law (Section 7) to furnishto the Registrar particulars of such new business occupations as beingchanges in one of the particulars registered in respect of the firm des-cribed in Certificate A. It was further contended in the District Courtthat while the nationality of the plaintiffs who are Indians was correctlyset out as British in the statement furnished for the 1943 declaration,that nationality underwent a change in 1950 upon India becominga Republic, and that the plaintiffs, having failed to furnish to theRegistrar in terms of Section 7 particulars of the change of nationality aredefaulters within the meaning of Section 9 of the Ordinance. It appearsto have been conceded by the plaintiffs in the petition filed at the timethey applied for relief that they had made default by their failure tonotify the alleged change of nationality. The learned judge himselfappears to have taken the view that there was default by reason ofthis alleged failure, but it seems to me that the question whether thenationality of the plaintiffs underwent a change at all in 1950 is debatable,particularly on account of the existence of the British Nationality Actof 1948. It may be mentioned that learned counsel for the appellantdid not seek to press before us the contention that the plaintiffs wererequired by law to notify a change of nationality. He limited the
T. S. FERNANDO, J.—David de Silva v. Ramancdhan Chettiar
419'
objection to the grant of relief to the claim that the plaintiffs had madedefault in furnishing particulars of the other business occupations ofthe plaintiffs by way of a change of particulars required in respect ofthe business carried on at 20A, Brownrigg Street, Kandy.
At the inquiry held in the District Court on the application for relief,,both plaintiffs gave evidence that they had been ignorant of the lawand that the furnishing of particulars to the Registrar had been attendedto at their request by a proctor’s clerk of their acquaintance. Thisclerk was not called as a witness and it may be mentioned also thatno evidence was led for the defendant. The learned District Judgehas held that the default was due to inadvertence and, further, thatas the defendant has not been prejudiced in any way by the defaultit is just and equitable to grant to the plaintiffs the relief they prayed for.
In regard to the grant of relief on the ground of inadvertence,Mr. Jayewardene contended that the plaintiffs were not ignorant of therequirements of the Ordinance as they had furnished the statementsupon which Certificates A, B, C & E were issued. It was also pointedout that in furnishing the particulars in 1948 for Certificate E they hadfurnished particulars of their other business occupations and must there-fore have been aware of the necessity of famishing such change ofparticulars. It should, however, be remembered that Certificate E wasissued as a result of the furnishing of particulars for a registration of anew business and the plaintiffs may well have been unaware of thenecessity of complying with the requirements of Section 7. The DistrictJudge has stated in his order that when the plaintiffs stated they werenot aware that they had to notify the registrar that their registration inrespect of the business of “ money-lending, financiers and landed pro-prietors ” should be changed when they commenced two other businessoccupations in 1946 and 1948 respectively they were speaking the truth.It is not possible for us to say that the learned Judge was wrong informing that opinion, and it follows that the granting of relief mustbe judged on the basis that the plaintiffs were ignorant of the law.
Mr. Jayewardene argued before us that default in complying with,the law due to an ignorance of the law does not constitute inadvertence..He referred us to certain decisions of this Court in relation to theMoney-Lending Ordinance (Cap. 67), and particularly to the observationsof Moseley J. in Sinnapillai v. Veeragathy 1 that although the generaltrend of English decisions seems to be that ignorance of the law mayconstitute inadvertence, the nature, quality, extent and consequences ofthe inadvertence must be weighed by the Court in each case. Moseley J.stated further that he found great difficulty in reconciling inadvertencewith the notion of ignorance. The word seemed to him to presupposeknowledge. On the other hand, Mr. Ranganathan has relied on certaincases and particularly on the observations of Garvin J. in Fernando v.Fernando 2, also a case relating to the Money-Lending Ordinance, that“ to hold that the word ‘ inadvertence ’ is used in a sense which completelyexcludes ignorance of the requirements of Section 10 is to hold that the-111937) 39 N. L. B. at 234.3 (1934) 36 N. L. R. at 80.
420
T. S. FERNANDO, J.—David ds Silva v. Bamonathan Chetliar
legislature, while intending to gjve relief to a person who with knowledgeof the law accepted a promissory note which did not comply with therequirements of that section through oversight, mistake or negligenceof thought, did not mean to extend that relief to a person who did soin complete ignorance of that provision of the law and that to do sowould be to take too narrow a view of the section ”, I do not, however,consider it necessary to enter upon an examination of the authoritiesas to the meaning to be placed on the word ‘ inadvertence ’ appearingin Section 9 of the Ordinance, as I am of opinion that the appeal nowbefore us can be disposed of on the second ground on which relief wasprayed for, viz. that on other grounds it is just and equitable to grantrelief. Our attention has been drawn to the case of Weller v. Denton1which dealt with the question of relief under the corresponding EnglishAct, the relevant section of which (Section S) was on all material pointssimilar to Section 9 of our Ordinance. The plaintiffs in that case hadnot complied with any of the provisions of the Act in respect of regis-tration because they had not been aware of the Act. The Court grantedrelief on the ground that it was just and equitable to do so, and Lush J.stated:—
“ The Act, however, gives to the Cour t the widest possible powers ofgranting relief to persons in default. It provides that the Court onbeing satisfied that the default was accidental, or due to inadvertence,or some other sufficient cause, or that on other grounds it is just andequitable to grant relief may grant such relief. The reason why thiswide power of granting relief should be given to the Court can well beunderstood. Where the defendant has not been misled, and knew themembers of the firm or other persons with whom he was dealing, itmight be most unjust and unequitable to hold that the plaintiff’s actionshould not be maintainable merely because he did not know that heought to have been registered under the Act. In the present case Ithink that the facts that the plaintiffs were not aware of the Act orthat it was necessary for them to register under it, and that thedefendant knew with whom he was dealing, were sufficient to give thecounty court judge jurisdiction to grant the plaintiff’s application forrelief. ”
In the case before us the plaintiffs have complied with the Ordinance in sofar as the registration of the firm itself was concerned and the default wasin respect of a change in the particulars of the registration which relatedto the nature of their other business occupations. The defendant wasthroughout aware of the identity of the parties in whose favour heexecuted the mortgage bond and no suggestion of any prejudice to himhas even been advanced, much less substantiated. I am of opinion thatthe learned District Judge had the power to grant relief in the circum-stances established before him and that that power has here been properly•exercised. The appeal should therefore be dismissed with costs.
* (,2921) 3 K. B. 103.
Appeal dismissed.