039-NLR-NLR-V-77-K.-NADESAN-Appellant-and-Mrs.-D.-M.-CANDIAH-Respondent.pdf
H. N. G. FERNANDO, C.J.—Nadesan v. Candiah
193
1971 Present: H. N. G. Fernando, C.J., and Wijayatilake, J.
X. NADESAN, Appellant, and Mrs. D. M. CANDIAH,Respondent
S. C. 137/67 (F)—D. C. Colombo, 62485/M
Business Names Ordinance—Declaration made thereunder as toownership of abusiness—Evidentialvalue—Estoppel by
representation—Proof.
Where a person has made a declaration under the Business NamesOrdinance that he is the sole proprietor of a business, there isnothing in that Ordinance which gives conclusive effect to suchdeclaration when in fact the business was carried on not by himbut by another person.
A plea of estoppel by representation cannot succeed unless arepresentation was made to some party and that party was inducedby the representation to a particular course of conduct.
APPEAL from a judgment of the District Court, Colombo.
C. Ranganathan, Q.C., with C. Chellappah and M. Sivaraja-singham, for the 1st defendant-appellant.
R. Manikkavasagar, with C. Ganesh, for the plaintiff-respondent.
Cur. adv. vult.
November 18, 1971. H. N. G. Fehnando, C.J.-—
The plaintiff in this case entered into an agreement with “ theMiddle-Class (L.C.) Housing Company ” by which the Companyagreed to construct a house for the plaintiff.
Although the plaintiff paid certain sums of money to theCompany under this contract, little construction work was doneby the Company, and ultimately the plaintiff sued the twodefendants for damages on account of the failure of the Companyto carry out the contract, and the learned District Judge entereddecree ordering the two defendants jointly and severally to paythe plaintiff a sum of Rs. 15,000 and costs.
Although the 2nd defendant filed answer, he did not participateat the trial and he has not appealed against the decree. Thisappeal is only by the 1st defendant.
The position of the 1st defendant was that he had no concernor interest whatsoever in the Company, and that the businessof the Company was carried on solely and for the benefit of the2nd defendant; and the learned Judge records in the judgment a
i.xxvn—9
1* A 0846J— 8,000 £74/07)
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H. N G-. FERNANDO, C.J.—Nadesan i'. Candiah
finding “ that it was the 2nd defendant who ran the business,entered into the contract and did all the work, and that hereceived all the monies In reaching that finding the Judgeobviously accepted the truth of the evidence of the 1st defendant.Nevertheless he answered in the affirmative the first issue, whichwas whether the 1st defendant had carried on the business ofthe Middle-Class (L.C.) Housing Company. This answerdepended entirely on a document P4 which was a Certificate ofRegistration of the Business Name of this Company, and on theadmission of the 1st defendant that he had furnished to theRegistrar of Business Names a declaration that he was the soleproprietor of this business. Ordinarily, a declaration of this kindwould be strong evidence that the person who made such adeclaration did in fact carry on the business in question. Butas I have already pointed out, the learned Judge accepted as truethe evidence that in fact the business was not carried on by the1st defendant. This involved also acceptance of the 1st defen-dant’s explanation that he was induced by the 2nd defendantto sign the declaration relating to . the business name of thelatter’s business. There is nothing in the Business NamesOrdinance which gives conclusive effect to a declaration madeunder it, and if, as the Judge found, the 1st defendant hadactually no concern whatsoever in the business, then the factthat he had made a false declaration cannot serve to establish anon-existent fact. I must hold for these reasons that the issue towhich I have referred had necessarily to be answered in favourof the 1st defendant.
Counsel for the plaintiff in appeal contended that because the1st defendant has held out in his declaration that he was theproprietor of this business, it is not open to him now to denythe truth of this representation. This contention is in substancethat the 1st defendant is now estopped from derying that he wasthe proprietor of the business ; but no plea of estoppel wasraised at the trial, nor could such a plea have succeeded in viewof the evidence of the plaintiff and her brother. Both of themadmitted that they were not aware at the time when this contractwas negotiated that the 1st defendant was in any way concernedwith the business of this Company. That being so, a plea ofestoppel could not have succeeded because a representation doesnot create an estoppel unless it was made to some party, andunless that party was induced by the representation to aparticular course of conduct. It is obvious from the evidence ofthe plaintiff that no representation was made to her by the 1stdefendant either expressly or by implication, and that she didnot enter into this contract on the faith of any suchrepresentation.
Kariapperuma v. KotelawcUa
106
For these reasons the appeal is allowed and the decree underappeal is amended to provide that the 2nd defendant onlywill pay to the plaintiff a sum of Rs. 15,000 together with costs,and that the action against the 1st defendant is dismissed withcosts.
The plaintiff must pay to the 1st defendant the costs of thisappeal.
Wuayatilake, J.—I agree.
i
Appeal allowed.