053-NLR-NLR-V-44-MARIKAR-Appellant-and-KAMALLA-Respondent.pdf
WUEYEWARDENE J.—Marikar and Kamalla.
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1942Present; Wijeyewardene J.
MARIKAR, Appellant, and KAMALLA, Respondent.
150—-C. R. Colombo, 68,178
Promissory note—Discharge by payment—Negotiation—Right of endorsee tosue.
Where a promissory note is discharged by payment, it cannot besubsequently endorsed by the payee so as to give the endorsee a right tosue the maker.
Jayawardene v. Rahiman Lebbe (21 N. L. R. 178.) followed. .
A
PPEAL from a judgment of the Commissioner of Requests,Colombo.
N. Nadarajah, K.C. (with him H. W. Thambiah), for appellant.
No appearance for respondent.
Cur. adv. vult.
■November 10. 1942. Wijeyewardene J.—
This appeal has to be decided on a question of law, as there has beenno appeal on questions of fact although the plaintiff was granted thenecessary leave to appeal on facts.
This is an action by the appellant as a holder in due course. TheCommissioner found that the note was made by the first defendantin favour of his sister, the second defendant, to secure a sum of Rs. 210promised by him as dowry to the second defendant. The first defendant,later, invested the dovjry on a usufructuary mortgage bond in March,1939, for the benefit of the second defendant, arid thereby discharged hisliability. The note was endorsed for value in August, 1940, to theplaintiff, who took the note without any knowledge of the investmentin March, 1939.
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Urban Council, Beruwala, and Fernando.
In Jayawardene v. Rahiman Lebbe1 it was held by a Bench of threeJudges that when a promissory note payable on demand was paid by themaker it could not be subsequently endorsed by the payee so as to givethe endorsee a- right to sue the maker on the note.
In Muttu Carupen Chetty v- Samaratunga' Jayawardene A.J. expressedhis doubts as to the correctness of the earlier decisions and referred tothe English case of Glasscock v. Balls3 in support of his observations.
In Thamboo v. PhiUippu Pillai' Garvin A.C.J. and Maartensz A.J.distinguished the facts of the case they were considering from the factsin Jayawardene v. Rahiman Lebbe (supra) and followed Glasscock v. Balls(supra) ■ In Vellasamy v. Mohideen‘ Dalton A.C.J. (with whom Koch A.J.agreed) reviewed all the earlier decisions of this Court and the caseof Glasscock v. Balls (supra) and distinguished the last case from thecase of Jayawardene v. Rahiman Lebbe (supra). I am able to draw thesame distinction between the present case and the English case. I amtherefore bound by the decision of this Court in Jayawardene v. RahimanLebbe (supra). I dismiss the appeal.
Appeal dismissed.