004-NLR-NLR-V-40-DE-FONSEKA–v.-CHARTERED-BANK-OF-INDIA,-AUSTRALIA-AND-CHINA.pdf
MAARTENSZ J.—De Fonseka v. Chartered Bank of India, Australia & China. 31
1938Present: Maartensz and Moseley JJ.
DE FONSEKA v. CHARTERED BANK OF INDIA,AUSTRALIA AND CHINA.
357—D. C. Colombo, 6,388.
Privy Council—Application for conditional leave—Notice to Bank by post—Notice to Manager as attorney should be by special application—^Appeals(Privy Council) Ordinance, 1909, rule 5a.
Where, in an application for conditional leave to appeal to the PrivyCouncil, it is sought to serve notice by post on a Bank, the notice mustbe posted to the registered office.
Where it is intended to serve notice on the Manager of the Bank asattorney the applicant should obtain an order under rule 5a of theRules made under the Appellate Procedure (Privy Council) Order, 1921.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
J. E. M. Obeyesekere (with him C. Seneviratne), for petitioner.
N. K. Choksy, for first defendant, respondent.
Cur. adv. vult.
July 27, 1938. Maaktensz J.—
The application of the plaintiff-appellant for conditional leave to appealto His Majesty the King in Council from the judgment of this Court datedJune 16, 1938, is opposed by the first defendant-respondent, the Chartered
32 MAARTENSZ J.—De Fonseka v. Chartered Bank oj India, Australia & Chino.
Bank of India, Australia and China, on the ground that the Bank was notserved with notice of the intended application as required by rule 2 of theRules in Schedule I of the Appeals (Privy Council) Ordinance, 1909.
The appellant relies on two notices. The first was sent by postaddressed to the Chartered Bank of India, Australia and China, Colombo.It was produced by Counsel who appeared for the Bank and is marked X.
The second was a notice served by the Fiscal on, according to the returnof the process server, the “ Manager, Chartered Bank of India
I do not think the second notice superseded the first, as the first noticeintimated that the appellant intended to apply on June 30, 1938, “ or sosoon thereafter as may be convenient ”, and is not inconsistent with thesecond notice which intimated that the application, would be made onJuly 11, 1938, “or on such date thereafter for which the said matter maybe adjourned ”.
The main contention is that the notices were not served on the Bankas the notice sent by post was addressed to the Colombo branch of theBank and the notice served by the Fiscal was in fact served on a Sub-accountant named Skinper and not on the Manager. It was also sub-mitted that even if it was served on the Manager it was not a good service.
•For the appellant it was argued that a notice addressed to the Colombobranch of the Bank was a good notice as the Colombo branch should havetransmitted it to its head office. We were not referred to any authorityin support of this proposition, and I am unable to accept it. In myjudgment where it is sought to serve notice by post on a Bank such as thedefendant Bank, it must be posted to the registered office. I accordinglyhold that the notice sent by post has not been served on the Bank.
As regards the notice served by the Fiscal, the appellant obtained anorder under rule 5 of the Rules made by the Appellate Procedure (PrivyCouncil) Order, 1921, that notice of his intention to apply for conditionalleave to appeal to His Majesty the King in Council be issued and servedthrough the Court. But he did not obtain an order under rule 5a thatthe notice be served on the attorney of the Bank. The notice of theintended application would therefore not have been properly served onthe Bank even if it was served on the Manager, and the Manager wasan attorney of the Bank or authorized to accept legal processes andnotices. See the cases of Fradd v. Fernando' and Wijesekere v..Norwich Life Assurance Company3.
It is therefore unnecessary to decide whether the notice was served onthe Manager as stated by the process server or on Mr. Skinner as swornto by him. –
In the result the application for conditional leave must be refused with' costs on the ground that notice of the intended application was not servedon the Bank.
Before leaving the case I should, I think, say that provision should bemade in the Rules to facilitate the service of notices required to be served•under the Ordinance and the Rules.
Moseley J.—I agree.
Application refused.
2 (1936) 6 Ceylon Law Weekly 121.
> (1934) 36 N. L. B. 132.