110-NLR-NLR-V-42-DE-SILVA-et-al.-v.-GUNAWARDENE.pdf
de Silva v. Gunawardena.
433
1941Present: Soertsz and Keuneman JJ.
DE SILVA et al. v. GUNAWARDENA.
313—D. C. Nuwara Eliya, 2,168.
Promissory Note—Payable at a particular place—Presentment for payment—Allegation in plaint regarding presentment essential—Statement that thenote was noted for non-payment sufficient—Bills of Exchange Ordinance,s. 88 (Cap. 68).
A promissory note was written in the following terms : —On theSeventeenth day of December, 1938, I the undersigned D. H. Gunawardenaof Talawakelle promise to pay D. G. Juwanis Appuhamy of Talawakelleor order, at …. Talawakelle the sum of Rupees Five Hundred
Currency for value received.
The note fell due on the 20th day of December, 1938, and was not paid.It was noted for non-payment and this appeared on the face of the note.It also appeared from the evidence that the maker and the payee hadeach a place of business at Talawakelle.
Held, that the promissory note was one payable at a particular placewithin the meaning of section 88 of the Bills of Exchange Ordinance.
Held, further, that where a note has to be presented for payment at anarticular place an allegation to the effect that presentment has beenmade at that place is a necessary ingredient of the plaint, and the plaintiff’scause of action is not complete without such an allegation.
The allegation in the plaint that the note was noted for non-paymentcarries with it the implied allegation that it was presented for payment.^l^PPEAL from a judgment of the District Judge of Nuwara Eliya.
H. V. Perera, K.C. (with him C. V. Ranawake and E. D. Cosme), forfirst defendant, appellant.—The law does not give the plaintiff a right tosue op the promissory note in question without a prior presentment forpayment. See sections 88 and 45 of the Bills of Exchange Ordinance(Cap. 68). No excuse has been shown under section 46. Presentmentfor payment is a condition precedent for the liability of the defendantand is part of the plaintiff’s cause of action. It should have been ex-pressly averred in the plaint. The fact that no issue was raised wouldmake no difference.
[Soertsz J.—Suppose there had been a waiver of presentment ?]
Then it should be pleaded in the plaint. The burden of provingpresentment is on the plaintiff. See Storer v. Sinthamany Chettiar1;Spindler v. Grellett5; Britannia Electric Lamp Works, Ltd. v. Mandler & Co.Ltd,*; Saibo v. Saibo
N. E. Weerasooria, K.C. (with him M. J. Molligodde), for the plaintiff,respondent.—In the plaint we expressly pleaded that the note was markedfor non-payment. In view of that averment it cannot be contended thatthere was no averment of presentment. Saibo v. Saibo (supra) is entirelyin our favour- The question of presentment was not raised either in the
1 {1938) 40 N. L. R. 109.3 {1939) 187 L. T. J. 324.
* (1847) 1 Exch. Rep. 384.4 (1908) 4 A.C.R. 45.
434
KEUNEMAN J.—de Silva v. Gunawardena.
answer or at the trial when the defendant was given an opportunity toraise an issue regarding it. Further, all that P 2, which was a reply to theletter of demand, stated was that there was nothing due.
It cannot be said that this promissory note was payable at a particularplace. Section 88 (1) of Cap. 68 is, therefore, not applicable. “ AtTalawakelle ” is too vague, particularly if a third party, as distinctfrom an immediate party, obtains rights, as in the present case.
S. W. Jayasuriya for second defendant, respondent.
H. V. Perera, K.C., in reply.—Talawakelle is a distinct place. “ Partic-ular place ” does not mean a particular building.
A memorandum to the effect “ Noted for non-payment ” does notnecessarily imply that there was presentment—Saibo v. Saibo (supra).Presentment must be averred unless there is some circumstance renderingpresentment unnecessary under sections 45 and 46 of Cap. 68.^
Cur. adv. vult.
July 4, 1941. Keuneman J.—
This is an action brought by the plaintiff on Promissory Note “ A ”dated November 23, 1936, for Rs. 500. The note runs as follows : —
On the Seventeenth day of December, 1938, I the undersigned
H. Gunawardena of Talawakelle promise to pay to D. G. JuwanisAppuhamy of Talawakelle or order, at …. Talawakelle the
sum of Rupees Five Hundred Currency for value received.
(Sgd.) D. H. Gunawardena.
The note fell due on December 20, 1938, and was not paid. It wasnoted for non-payment, and this noting appears on the face of the note.
It is contended for the appellant, who was the maker of the note,that this was a note which had to be presented for payriient, and that theaction failed, because there was no allegation that the note was presentedat the place of payment, and then dishonoured.
The first question that arises for determination is whether this note ismade payable at a “ particular place ” within the meaning of section 88of Capter 68. It is to be observed that the note is made payable “ atTalawakelle ”. In Storer v. Sinthamany Chettiar1 Maartensz J., wherethe note was payable “ at Negombo ” held “ where …. thereare no circumstances from which the place where payment is to be madein Negombo can be gathered—and it does not even appear whether by‘ Negombo ’ is meant the town or district—the notes in my judgment,are not made payable at a ‘ particular ’ place, and presentment forpayment is not necessary to render the maker liable”. If the words“ at Talawakelle ” stood alone, these remarks would be apt in this casealso, but there is this difference in the present case, viz., that in the bodyof note “ A ” it is stated that both the maker and the payee are of Talawa-kelle, and it is clear from the evidence that each of them has a place ofbusiness at Talawakelle. This may at first sight appear to create anambiguity as to which “ place in Talawakelle ” is to be the place of
1 40 N. L. R. 109.
435
KEUNEMAN J.—de Silva v. Gunawardena.
presentment, but I think, on consideration, that, as we are dealing withpresentment for payment, it may prima facie be taken that presentmentshould be made at the address of the maker of the note, who is responsiblefor the payment.
In Storer’s case, Maartensz J. emphasized the address of the maker,but he also suggested that it may be possible from the course of businesscarried on between the maker and the payee to find that presentmentfor payment should be made at another address.
It is, I think, clear from the English cases cited to us that where a notehas to be presented for payment at a particular place, an allegation tothe effect that presentment has been made at that place is a necessaryingredient of the plaint, and that the plaintiff’s cause of action is notcomplete without such an allegation. It is true'that the plaint does notin express words state that the note was presented for payment at themaker's place of business or in fact at any place. But Mr. Weerasooriafor the plaintiff-respondent contends that the allegation in paragraph 3of the plaint, that the said note was “ marked for non-payment ” onDecember 20, 1938, is a sufficient compliance with the requirement of thelaw. The words “ marked for non-payment ” clearly mean “ notedfor non-payment ”, and such noting appears on the face of the document.Now it is true, as Mr. Perera for the appellant points out, that in thisparticular case, the noting for non-payment does not give any speciallegal efficacy to the promissory note, but I think we are entitled to takeinto account the attitude of business men to this question of noting.In this connection Chalmers in his “ Bills of Exchange ” 9th edition, page199, says “For business purposes noting is usually taken as showing duepresentment I am inclined to think that the allegation with regardto the noting, carries with it the implied allegation that the note wasduly presented for payment.
It is to be observed that while the first defendant expressly traverses thefurther allegation in paragraph 3 of the plaint of the giving of notice ofdishonour, he makes no reference in his answer to the question of duepresentment for payment. Also in his reply P 2 to the plaintiff’s letterof demand, the defendant stated that he was not bound to pay the amountclaimed owing to failure of consideration on the note, and made no mentionof a failure to make due presentment for payment.
In Spindler v. Grellett (1847) English Reports, Volume 254, page 163,it was held that an allegation in the plaintiff’s declaration that theplaintiff was always ready and willing to receive the sum in question,according to the tenor and effect of the note did not amount to an aver-ment of presentment at the proper place. On the other hand in Huffarnv. Ellis (1811) English Reports, Volume 128, page 165, an allegation, thata bill was presented for payment to the acceptor according to the tenorand effect of the bill (without any express mention of the place wherethe bill was presented) was held to be a sufficient averment ofpresentment at the proper place.
I do not think at the present day I am unduly straining the languageemployed in this plaint when I hold that there is by implication an allega-tion that the due formalities with regard to presentment for paymenthave been complied with. I think it was open on the language used in
436
Anees v. Bank of Chettinad.
the plaint for the first defendant to traverse the allegation of duepresentment if he wished to do so, and that it was necessary for himto do so at this stage.
The further proceedings in this case have also to be considered. OnJune 23, 1939, which was a date of trial, Proctor for the first defendantsuggested two issues relating to the question of presentment for payment,as follows : —
Can the plaintiff have and maintain this action as presently
constituted inasmuch as there is no averment in the plaint asregards presentment ?
Has the note been presented to the first defendant for payment ?
It may be mentioned in this connection that the precise point that thenote had not been presented at the particular place has not beenspecifically raised, although it may come within the ambit of theissues. These issues were disallowed by the District Judge as they hadnot been raised in the answer. I think this disallowance was justified.
Evidence was then led in the case on the next trial date, viz., July 12,1939. Proctor for the first defendant once more pressed that the issues inquestion should be allowed. Plaintiff’s counsel refrained from objectingto the issues, but stated that he was not prepared to meet them on thatdate. The District Judge then allowed the issues, but ordered the firstdefendant to pay the day’s costs to the plaintiff. The first defendantdeclined1 to pay these costs, and the District Judge then again disallowedthese issues. Here again I think the order of the District Judge wasjustified.
In substance then the first defendant has been given the opportunityof raising these issues, and has decided not to avail himself of this. I donot think he should, be given another opportunity in appeal.
The appeal is dismissed with costs.
Soertsz J.—I agree.
Appeal dismissed.