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1*regent: Dalton J.
MUNICIPAL COUNCIL, KANDY v. ABEYESEKERE240—C. B. Kandy, 6,712.
Prescription—Supply of electric current—Book debt—Ordinance Ko. 22of 1671, s. 9.
A claim for mono; due to the Kandy Municipality for thesupply of electric current and for the hire of electric lamps isprescribed in one year.
PPEAL from a judgment of the Commissioner of Bequests.Kandy.
Oarvin, for appellant.
Oratiaen, for respondent.
February 26, 1930. Dalton ,T.—
This appeal raises a question under the Prescription Ordinance,1871.
The Municipal Council of Kandy, the appellant, sought torecover the sum of Bs. 64.20 from the respondent for the hire ofelectric lamps and the supply of electric current for a pirith ceremonyin December, 1927. The sum of Rs. 53.30 was paid on December 10,1927, at the time of the order, leaving a balance due of Bs. 64.20.This action was brought on May 29, 1929, and defendant pleadsthe benefit of the Prescription Ordinance.
The Commissioner held that the debt was a book debt within themeaning of section 9 of the Ordinance, being prescribed withinone year, and dismissed the Council’s action, but without costs.
The question arising on the .appeal is whether section 9 applies,as defendant pleads, or whether section 8 or section 11 are applicable‘ as plaintiff urges.
The Council carry on the business of supplying electric currentand fittings within the Municipality; they also hire out lamps forillumination. Books are kept for the purpose of this business,in which the accounts with the various customers are entered.
This particular order was supplied on the written request of thedefendant. The lamps, some of variegated colours, were requiredfor seven days for a pirith tent on the Victoria- esplanade. Thisrequest was replied to in writing, the Municipal Electrical Engineersetting out the cost and stating that the work would be put inhand on receipt of a deposit. Defendant then paid the depositasked for, which covered the whole cost of hiring the lamps andpart of the cost of electric current. It is urged that this order andacceptance established a contract within the meaning of section 8,or else fell within section 11 as not being otherwise provided for.
The question arising here has been considered in Walker, Sons ftCo, Ltd. v. Kandyah.1 Whether or not such a contract as wohave under consideration was a written or unwritten contract,
* 21 N. L. R. 317
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■within the meaning – of either section 7 or section 8, there is nodoubt that section 9 provides specially for actions on certainclasses of contract- As Moncrieff J. pointed out in Horsfall v.Martin,1 certain claims referred to in section 9 must be prosecutedwithin one year from the date at which they become due, whetherthey are based upon written promises or not. It will not thereforebe sufficient here merely to ascertain whether the agreement wasin writing or not.
It is obvious of course that every entry of a debt in a book is nota book debt within the meaning of that section. I also accept thecorrectness of Mr. Garvin’s argument that statutes of limitationmust be strictly construed. The defence of lapse of time againsta just demand is not to be extended to cases which are not strictlywithin the enactment (Roddam v. Morley2). Having regard ,to allthese considerations however I am of opinion that the Com-missioner’s decision was correct. This is a debt arising in a tradeor business carried on by the plaintiff Council, in which it is usualto keep books, and which ought to be booked in the ordinarycourse. This conforms to the test applied by me in an earlier cast*.(Pate v. Mad;*’). For these reasons the appeal must be dismissedwith costs.
There is a cross-appeal by defendant on the question of costs.It was not pressed. As pointed out in Boddam v. Morley (supra),one must not give encouragement to the notion that there is ofnecessity anything morally wrong in a defendant relying on astatute of limitation. In this case however there are circum-stances that justify the Commissioner’s order as to costs in thelower Court.
MUNICIPAL COUNCIL, KANDY v. ABEYSEKERE