140-NLR-NLR-V-57-MRS.-C.-F.-SENEVIRATNE-Appellant-and-J.-L.-TISSAVERESINGHE-Respondent.pdf
1956Present : Gratiaen, J., and Gunasekara, J.
MRS. C. F. SENEVIRATNE, Appellant, and J. L.TISSA VERESINGHE, Respondent
S. C. 45—C: R. Colombo, 5G,6S0
Landlord and tenant—Payment of rent—Agreement by landlord to accept cheques senCby post—Computation of dale of payment—Rent Restriction Act, No. 13 of 1918,s. 13 (1) (a).
Where a landlord had expressly agreed that payment of rent should be mademonthly by means of a cheque posted to his address—
Held, that the posting of the cliequo by tho tenant on a particular date operat-ed as payment of tho rent on that date, for the purposo of ascertaining whetherthe tenant was in an-ear of rent.
J^lPPEAL from a judgment of the Court of Requests, Colombo.
A. K. Choisi/, Q.C., with Jlliss M. Seneviralne, for the defendantappellant.
R. S. R. Coomarasicamy, with B. A. R. Candapjia, for the plaintiffrespondent.
Cur. adv. viill.
March 14, 1956. Gratiaex, J.—
This was an action to have the defendant ejected from a residentialbungalow situated in Colombo, of which she had been the monthly tenantfor several years, on the ground that the rent for August 1954: had been“ in arrears for more than one month after tho same became due ” withinthe meaning of section 13 (1) (a) of the Rent Restriction Act, No. 13 of194S..
There is no dispute as to the facts. The plaintiff, who is the land-lord, resided and earriod on his profession as a Proctor in Batticaloa,and the contract of tenancy had originally provided that tho rental for
oach month should bo paid on or before tho 10th daypf that moiitli.It was subsequently agreed, lionever, that the rental should be paid"before the’ last date of each month, and that, in order to suit the plaintiff’s•convenience, each payment should be made on tho defendant’s behalfby her Proctor (who lived in Colombo) by means of his cheque postedto tho plaintiff’s office at Batticaloa.
At tho end of August 1951 the defendant’s Proctor omitted throughinadvertence to post a cheque as usual to the plaintiff. On 30th•September 1954 he became awaro of this omission, and immediatelywrote to the plaintiff a letter apologising for the delay and enclosing acheque for Rs. 194/32 which represented the total amount due as rentalfor August and .September. Tins cheque was received by the plaintiffat Batticaloa on 1st October 1954.
Upon theso admitted facts, the learned Commissioner of Requeststook the view- that, as the rent for August 1954 should have been paid ”not later than the last date of that month, the plaintiff had lost herstatutory protection at the time when the cheqxie actually reached theplaintiff on 1st October—that is to say one month and one day afterthe rent “ became due ” within the meaning of section 13 (1) («■). Thelearned Commissioner rejected the defendant's contention that, havingregard to tho terms of the contract, the actual posting of the cheque inColombo on 30th September operated as payment on that day itself.It is common ground that, if this latter view be correct, the defendant’sprotection under the Act lias not been lost.
• The issue must be determined by reference to the terms of the contractbetween the parties. In this case the plaintiff, as creditor, had expressly-agreed to accept payment of the debt due to him in some form other thancash, and it was agreed that payment should be made by means of acheque posted at Colombo to his address in Batticaloa. In other words,he constituted the postal authorities his agents to receive on his behalfat Colombo the letter containing the cheque. In these circumstances,the posting of the cheque must- be taken as tnc equivalent in law ofdelivery to the plaintiff himself. In the result, tho posting of the chequeon 30th September operated as a payment of the debt on that date.Norman v. Picketts ; Pennington v. Crossley ; JiaJzer v. Pip ton 3 ;Thairwall r. The O. N. _/?. Co. 4. The legal position would, of course,have been different if the agreement between the parties had merelyprovided for payment of the rent on or before a particular date, in which,event the unilateral decision of the debtor to send the rent by post athis own risk would not have sufficed to constitute payment until themoney actually reached tho landlord.
I would allow the appeal, and dismiss the plaintiff’s action with costin both Courts.
Gu>'.sekaea, J.—I agree.
Apptal allowed