028-NLR-NLR-V-55-In-re-C.-E.-DE-S.-SENARATNE.pdf
ROSE C.J.—In re Senaratne
97
1953 Present: Rose C.J., Nagalingam S.P.J. and K. D. de Silva J.In re C. E. DE S. SENARATNEIn the Matter of a Rule on a Proctor
Proctor—Miscond act.
The respondent, a Proctor, who had been entrusted with a sum of Rs. 4,000by a client on February 12, 1949, for the purpose of discharging a mortgagebond executed by the client, falsely represented to the client on November 22,1949, that he had got the bond discharged and had sent it for registration. Infact, however, he failed to return the discharged mortgage bond and title deedsnnf-.iT December 6, 1952, after the conclusion of an inquiry by the DisciplinaryCommittee of the Law Society.
Held, that by his conduct the respondent had fallen short of that standardof conduct that, in the public intorest, was required of a professional man.
Jt^.ULE on a Proctor.
N. E. Weerasooria, Q.C., with M. M. Kumarakulctsingham, G. T.Samerawickreme and O. S. M. Seneviratne, for the respondent.
N. K. Choksy, Q.C., with E. R. S. R. Coomaraswamy, for theIncorporated Law Society of Ceylon.
M.Tiruchelvam, Crown Counsel, with R. S. Wanasundera, CrownCounsel, for the Attorney-General as amicus curiae.
Cur. adv. vult.
October 27, 1953. Rose C.J.—
In this matter the Chairman and one of the other two members ofthe Disciplinary Committee have found that Mr. C. E. de S. Senaratne,Proctor, appropriated to his own use a sum of Rs. 4,000 entrusted tohim on the night of 12th February, 1949, by a Mrs. Wanasinghe for thepurpose of discharging mortgage bond No. 1757 executed by her. Theyalso found that Mr. Senaratne practised a deceit when by his letterdated 22nd November, 1949, (P20), he informed Mr. Wanasinghe, thelady’s husband, that he had got the bond discharged on or about the13th November, 1949, and had sent it for registration.
The third member of the Committee agreed with those two findingsbut held in addition that Mr. Senaratne “ without any justificationdeliberately withheld the petitioner’s title deeds and bond to her lossand detriment ”.
As no prosecution has been instituted or is contemplated against therespondent forltnisappropriation of the monies in question, the respondentwas required to show cause only. in respect of those representationsin the letter of 22nd November, 1949, and of his failure and neglect toreturn the discharged mortgage bond No. 1757, until the conclusion ofthe inquiry by the Disciplinary Committee on the 6th >of December,1952.
5L.V .
2J. N. B 29785-1,592 (10/53
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ROSE C.J.—In re Senaralne
The Committee found, and it is not in dispute, that tjie two sums ofRs. 1,000 and 3,000 were paid to and accepted by the respondent forthe purpose of redeeming the Rs. 4,000 loan on mortgage bond No. 1757.The discharged bond and title deeds not having been received byMrs. Wanasinghe or her husband by November, 1949, the letter (P15)dated 3rd November, 1949, was written to the respondent by the husbandof Mrs. Wanasinghe. This letter requested a prompt discharge of the deeds.By (P16) dated the 4th November, the respondent replied to this letterin the following terms :—
“ Dear Mr. Wanasinghe,
I received your registered letter today. I have not yet got the bondsigned by the man and I am -writing to him to come and dischargesame immediately in order to give the deeds to you. I have got hisreceipt for the money paid. As soon as the bond is signed by the manI’ll send you the title deeds. I do not know you wanted these ina hurry. Why did you not tell me so before ?
Yours sincerely,
No explanation is given as to why the bond was not cancelled on paymentof the Rs. 4,000.
Two further letters were written by Mr. Wanasinghe (PIT and PIS)on the 11th and 16th November, 1949, asking for the documents to bedispatched without delay. No replies were sent by the respondent toeither of these letters. On 21st November, 1949, the letter (P19) wassent by Mr. Wanasinghe in the following terms :—
“ Dear Mr. Senaratne,
I haven’t received replies from you to my letters. My wife is worriedover this matter and I wanted to go and see Haramanis Appuhamyand bring him to you. But on my way I went to Uncle R. S. and hetold me that he would talk to you and make arrangements to sendthe deeds on or before Thursday. In failing I will have to take thetrouble to go and see the man on Friday. I hope you will be so goodas to send the deeds before Friday.
(Sgd.) D. T. Wanasinghe. ”
The uncle “R. S. ” referred to is apparently Mr. R. S. Perera who is aProctor who practises in partnership with the respondent. It was in replyto this letter (P19) that the respondent sent the letter of 22nd November,1949 (P20) that is under inquiry. (P20) is in the following terms :—
“ Dear Mr. Wanasinghe,
{*-
I received all your letters yesterday when I came to office. I wasabsent from office the whole of last week. I got your letter today.I got your bond discharged about nine days ago and sent it for regis-tration. At no time, till you wrote to me, did you tell me that thedeeds were* required by you urgently. You saw me twice after youpaid the money, and on both occasions you saw me about a transfer,and only casually asked me about the deeds. Your attitude now is
BOSE C.J.—In re Sena mine
99
very unfair to me. I paid you money to the mortgage a four days… gave same to me. If you were in a hurry, I would have
attended to the matter immediately.
Yours sincerely,
>9
The position taken up by the respondent before the DisciplinaryCommittee appears to have been that the letter of 22nd November,1949, was written owing to some incorrect information which wassupplied to him by his clerk, and that the true reason for the delay wasthat the mortgagee was raising difficulties about some interest whichwas alleged to be due on the bond.,
The Committee have rejected both those explanations and we see noreason to differ from their conclusions. Moreover, the correspondencewhich was produced at the inquiry included some letters from Mr. R. S.Perera, which lends no support to the respondent’s contention. In theletter (P26) written on 14th December, 1949, to Mr. Wanasinghe,Mr. R. S. Perera says, “ Nothing concrete seems to have happened reyour matter … I believe it is his (respondent’s) intentionnow to do it immediately he is in a position to do it ; it is very difficultto say just now … Things can’t be very different from what
I told you when I met you last. ” In a letter (P27) dated 28th December,1949, also written to Mr. Wanasinghe, Mr. R. S. Perera says, “ I amafraid the (respondent) could have done it last week—now that it hasnot happened he will have to wait till January to get the money heexpected early this month. However I think you need not worry justat present … ”
At the inquiry the mortgagee, one Haramanis Appuhamy, gaveevidence in favour of the respondent, and the respondent in fact producedtwo receipts (R1 and R2) alleged to have been given by the mortgageein 1948 and 1949 respectively in respect of tw7o payments forRs. 1,000 and Rs. 3,000. The Committee seem to have disbelieved theoral evidence of Haramanis Appuhamy and to have regarded the receipts(R1 and R2) as fabricated. They point out, as is indeed the case, thatno mention of these receipts was made in any of the letters written bythe respondent at the relevant time either to Mr. or Mrs. Wanasinghe,and that such an omission would seem to be inexplicable if in factthese receipts were genuine and were in his possession at the time. Sofar, indeed, from having endeavoured to give a rational explanationon the lines of what the _ respondent indicated to the Committeewas the true position, it appears from the correspondence that therespondent had adopted an attitude of resentment and even of truculence.
Upon a careful consideration of all these matters I see no reason to dis-agree with the findings of the Disciplinary Committee and consider that therespondent has failed to explain or to excuse his false representationson the 22nd of November, 1949, and his failure to return the dischargedmortgage bond No. 1757 until after the conclusion of the inquiry bythe Disciplinary Committee of the Law Society. I also agree with theview of the Disciplinary Committee that by his conduct in this matterthe respondent has fallen short of that standard of conduct that, inthe public interest, is required of a professional man.
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Attorney-General v. Di-ssanayahe
The question of punishment is always difficult in matters of this kind.While paying full regard to the fact that the mortgage bond and titledeeds have now been returned to Mrs. Wanasinghe, and that it maytherefore be the position that she and her husband have suffered nothingmore than inconvenience, annoyance and anxiety, I consider that theinterests of the profession and the public demand a suitable recognitionof the respondent’s misconduct. The respondent will therefore besuspended from the practice of the profession of proctor for three yearsfrom this date. The respondent will pay the costs of these proceedingsto the Law Society in the sum of Rs. 262.80.
Nagaxjngam S.P.J.—I agree.
K. D. de Silva J.—I agree.
Respondent suspended from practice for 3 years.