042-NLR-NLR-V-71-K.-C.-C.-PERERA-Appellant-and-K.M.-PERERA-Respondent.pdf
161
t)E KRETSEB.J.—Perera v. Perera
1968 Present: H. N. G. Fernando, C.J., and de Kretser, J.
K.G. G. PERERA, Appellant, and K.'M. PERERA, Respondent
S.C. 617166—D. C. Colombo, 21227/S
Cheques—Notice of dishonour—Burden of proof—Effect of words "Not arrangedfar " noted on the cheques.
In an action on two dishonoured cheques on which were noted the words
Not arranged for ”, the defendant denied that there was notice of dishonourand put the plaintiff to strict proof of it. The plaintiff submitted that noticeof dishonour was not necessary because the words “ Not arranged for "indicated that when the cheques were presented there were no funds in theBank to meet them.
Held, that, in the absence of any evidence by the plaintiff to show whatexactly the words “ Not arranged for ” meant, the defendant was entitled,-in view, of the pleadings and the issues, to presume that nothing turned onthose words. Moreover, there was no proof aa to who wrote the words, forthere was not even the seal of the Bank on the cheques.
Afp:
EAL from a judgment of the District Court, Colombo.
N. S. A. OoonetiUeke, for the defendant-appellant.
W. D. Ounasekera, with W. 8. Weerasooria, for the plaintiff-respondent.
Cur. adv. vult.
June 25, 1968. de Kbetseb, J.—
The Plaintiff sued the Defendant on five cheques marked A to E.This Appeal is concerned with cheques D and E in regard to which thejudgment of the Trial Judge states as follows :
“There is no evidence to prove that notice of dishonour was given.Notice however is not necessary where the dishonour is due to absence ofeffects in the Bank's book. The cheques D and E were returned withthe remark “Not arranged for". Notice of dishonour is therefore notnecessary in respect of the cheques D and E. ”
He gave judgment for the Plaintiff in the sum of Rs. 11,000 the valueof cheques D and E—with legal interest and costs. The Defendant hasappealed.
In his plaint, the Plaintiff has pleaded that there was notioe of dishonourof these cheques and accordingly his cause of action was based on thatplea. He did not plead that there was no notice but that notice was notnecessary in view of the absence of effects in the Bank. The Defendantdenied that there was notioe of dishonour and put the Plaintiff to strict
j 68DE KRETSER, J.—Ferera v. Ferera
proof of it. At the Trial, the Defendant raised the issues (No. 8) wasnotice of dishonour ^according to thejpro visions of the Bills of ExchangeOrdinance given in respect of all or any of the cheques marked A, B, C,D, and E. (No. 9) if not can the Plaintiff have and maintain this actionon all or any of the cheques marked A, B, C, D and E.
The Trial Judge answered Issue 8 in favour of the Defendant. Counselfor the Defendent submits that in consequence of that answer thePlaintiff’s action should have been dismissed for in this case, on thepleadings and the issues raised, the one question was whether notice ofdishonour, which is a condition precedent to the right of action on thesecheques, had been given. Counsel for the Plaintiff submitted that therewas evidence in the case which would justify the Judge’s finding that itwas one in which no notice of dishonour was necessary. He pointed to thewords not arranged for noted on each cheque and claimed that thisconclusively showed that when the cheques were presented, there wereno funds in the Bank to meet them. He submitted that the Defendantcould not claim to be taken by surprise in that he did not object to theadmission of cheques with these words noted on them. The short answerof the Counsel for the Defendant is that the Plaintiff should havecalled evidence to show what exactly the words "not arranged for”mean and that unless that was done the Defendant was entitled in viewof the pleadings and the issues to presume that nothing turned on thesewords. He also pointed out that there is no proof as to who wrote themfor there is not even the seal of the Bank on these cheques.
Counsel for the Plaintiff asked for the opportunity on terms to prove whatthe words mean. I need hardly point out that that would not concludethe matter for the Plaintiff would also have to prove that there were nofunds to meet the cheque when it was due for presentation, for it is notcontested that it was in fact presented after the due date. Thereappears to be no good reason why the Plaintiff should be given a chanceof establishing that the decision of the umpire, given on the grounds hedid not seek to establish, is in fact correct. This appears to be a casewhich should be decided in accordance with the pleadings, the issuesraised on the pleadings and the evidence led relevant to these issues.
For these reasons, the appeal is allowed, and the Plaintiff’s action isdismissed with costs in both Courts.
H. N. G. Fernando, C.J.—I agree.
Appeal allowed.