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NATCHIAPPA CHETTY v. TAMBYAH.D. C., Colombo, 6,986.1896.
Promissory note payable on demand—Claim for unstipulated interest—Summonsissued on the special form provided for action for recovery of liquidatedamount under s. 708 of-the Civil Procedure Code—Improper claim undersummary procedure—Leave to defend the claim for interest—Duty ofCourt as to such claim for interest—Application of English decisions toprocedure of Ceylon Courts.
Where a plaintiff brought an action on a promissory note payable ondemand, claiming principal and interest, and was allowed a summonsunder chapter' 68, and the defendant was given leave to defend oncertain terms the claim for interest,—
Held that, as the note was payable on demand, without any stipulationas to interest, and the date of demand appeared to be the date of theinstitution of the action, the claim for interest was illegal and was not aproper subject for the summary procedure of chapter 63 of the CivilProcedure Code.
It was the duty of the Court to have refused the issue of a specialsummons except on the condition that the claim for interest was struckout.
Bonsbb, C.J.—In applying decisions on English procedure to theprocedure of our Courts, we ought never to lose sight of the essentialdifference between the two procedures. In the English Courts litigantstake each step as on their own responsibility and at their peril, whereashere the duty of taking the greater part of the steps in a litigation isthrown upon the Court. While it may be right to punish litigants fortheir own carelessness, it is not equally right to punish them for mistakesmade by the Court.
N the 15th February, 1895, this action was instituted on apromissory note, dated 10th May, 1894, for Bs. 2,600 payable
on demand. The plaintiff prayed for interest from the date of thenote. Summons issued under chapter 53 of the. Civil ProcedureCode for Bs. 2,778.75 and legal interest on Bs. 2,600 from the dateof the institution of the suit.
The defendant filed affidavit averring that demand was madeonly on 14th February, 1895, and denying his liability to pay theBs. 178.75 claimed as interest due from the date of the note to thedate of institution.
On the defendant’s ex parte motion for. leave to appear anddefend the plaintiff offered to waive interest.
Grenier, A.D.J., held that advantage could not be taken of theoffer, and that, as defendant did not contest that the principalsum was due, he should be allowed to defend the action onthe question of interest, on paying Bs. 2,600 or securing itspayment.
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1890. The defendant appealed, and as he did not pay or secureSeptember 17. Rs. 2,600 final decree was entered, and the defendant appealedfrom it also.
Bawa, for defendant, appellant.
Domhont, for respondent.
The arguments of counsel are stated and dealt with in thejudgment of the Chief Justice.
17th September, 1896. Bonsee, C.J.—
This is a case which involves some little technicality. Theplaintiff sued the defendant upon a promissory note for Bs. 2,600,dated 10th May, 1894, whereby the defendant promised to pay ondemand the sum of Bs. 2,600, nothing being said about interest.On the 15th February, 1895, the plaintiff filed his plaint. Italleged that the note was now overdue, that demand had beenmade, and that no payment had taken place. The date of demandwas not stated in the plaint, so that it must be inferred that theonly demand was the institution of the action. The plaintiffclaimed the principal sum of Bs. 2,600 with interest at 9 percent, per annum, which is the legal rate of interest, from the dateof the note till payment. The plaintiff then applied to the Court,under section 703 of the Code, for summons to issue on the specialform which is provided for actions “ where the claim is for adebt or liquidated demand in money arising upon a bill ofexchange, promissory note, or cheque, or instrument, or contractin writing for a liquidated amount of money, or on a guaranteewhere the claim against the principal is in respect of such debtor liquidated demand, bill, note, or cheque.’’
When a summons has been issued in this special form, thedefendant is not allowed to appear and defend the action withoutspecial leave and, to obtain that leave, must show some ground ofdefence. The summons was issued, and it stated that the plain-tiff had instituted an action under chapter 53 of the Civil Proce-dure Code for Bs. 2,778.75, Bs. 2,600 of that being principal andBs. 178.75 being interest from 10th May, 1894, to 15th February,1895—that is, the date of the note to,the date of the institutionof the action—and the defendant was1 summoned to appear anddefend the action.
The defendant applied to the Court for leave to defend, and hesupported his application by an affidavit in which he does notdeny that the principal money is due, but he states that he is notliable for any interest, and that he is advised he has a good legaldefence against the claim of the plaintiff for interest.
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When that application of the defendant came to be heard- by ltiM.the Acting District Judge it was pointed out to him that the Septemtierif.special form of summons ought not to have issued, because this Bomber, O J-claim for interest ought not to have been included, not being aliquidated amount arising upon a promissory note. In fact, therewas no ground for holding any interest due at all. The ActingDistrict Judge, however, would not allow this to be done, but hegave the defendant leave to come in and defend the action as faras regarded the interest, and imposed as a condition precedentthat he should deposit the principal of Bs. 2,600 in Court.
Against that order the defendant has appealed.
Mr. Domhorst has ingeniously argued that the claim forinterest was sustainable, that under the terms of section 67 ofthe English Bills of Exchange Act, which governs this case,interest ran from the date of the note, and was liquidated damages.
He argued that a promissory note, payable on demand, being atmaturity on the very day on which it was made, interest ought tobe reckoned from that date. But, in my opinion, that contentionis inconsistent with the plain words of section 67 of the Bills ofExchange Act, which provides that in the case of a bill—and forthis purpose in my opinion “ bill ” and “ note ” are synonymous—interest is to run, in case of a bill payable on demand, from thedate of demand, and in other cases from maturity. The date ofdemand in this case being the institution of the action, this sumof Bs. 178.76 interest was improperly claimed. It was not anaction for a liquidated amount of money arising upon the note,and it was not a proper subject for the summary procedure ofchapter 63. The Court ought to have refused to issue a specialsummons, except on the condition that the claim for interest wasstruck out. When this mistake on the part of the Court waspointed out, the Court should have at once rectified it, especiallyas the plaintiff was willing that this should be done. The ActingDistrict Judge should there and then have taken his pen andamended the plaint by striking out the claim for interest, and thenproceeded to deal with the case.
The appellant relied upon the case of Gurney v. Small (1891),
Q. B. 584, which was a case under order 14, rule 1, of theJ English Buies and Orders, where it was held that a summonscould not be issued under that special procedure, where a similarclaim for interest had been included in the original writ ofsummons. It was held that a subsequent amendment of the writof summons could not have retrospective effect so as-to make theissue of the special summons good. But in a later case of Paxtonv. Baird (1892), 1 Q. B. 139, it wa6 held that, where a writ of
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ISM. summons originally included a claim for interest, such as thiB, soSeptember 17. as not to be a specially endorsed writ, the writ might be amendedBohsbb,C.J. ^ striking out theclaim forinterest, andthe appearance to the
unamended writ ofsummonsmust standgoodfor the amended
writ of summons.
In applying decisions on English procedure to the procedure ofour Courts we ought never, to lose sight of the essential differencebetween the two procedures. In the English ;Courts litigantstake each step on their own responsibility and at their perilwhereas here the duty of taking the greater part of the steps in alitigation is thrownupon theCourt. While itmay be right to
pimish litigants fortheir owncarelessness,it isnot equally right
to punish them for mistakes made by the Court.
Mr. Bawa argued that this plaint, not being' a plaint to whichthe special provision of chapter 58 was applicable, the defendantwas entitled to come in and defend the whole action uncondi-tionally. But, in my opinion, it would be exceedingly unjust thatthe defendant, when he admits that Bs. 2,600, the principal, wasdue, should be able to keep the plaintiff at arm’s length for manymonths, as would be the case if he were allowed to defend theaction generally. In my opinion, the ends of justice would havebeen met if the Court had struck out the claim for interest, andgiven judgment for the principal, which was admitted by thedefendant to be due. That order, which ought to have been madethen, we make now.'
Then with regard to costs. The defendant ought to have thecosts of his affidavit for leave to defend,' and of his appearance.
It appears that the District Judge entered up judgment for thewhole claim, including interest, which under no circumstancescould the plaintiff claim, either in this or in any other form of action.
The judgment should be amended to a judgment for Bs. 2,600,with interest at 9 per cent, per annum from the date of theinstitution of action.
The defendant will ajso have his costs of appeal.
I agree in the order proposed. I think we can and should dowhat the Court below might and should have done. .
The Court entertained this plaint and ordered summons underchapter 53. The defendant claimed leave to appear and defend,not the principal claim, but the claim for interest. The Courtallowed him to defend on the terms that he should deposit theprincipal sum of the note in Court or give security. Thedefendant should not have been required to defend on terms, for
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the defence to the claim for interest was ex facie a sound one.But for the imposition of those terms there would possibly havebeen no appeal. Had the issue been fought out, the defendantwould have succeeded. A Court should be very careful inentertaining plaints presented to it under chapter 53. The plain-tiff cannot take out a summons as he chooses. The Court’s dutyis to order the summons (see section 55). A Court shouldnot order summons in form No. 19 unless it is satisfied that theolaim satisfies the requirements of section 703. If the plaint needsamendment to bring it within the chapter, and the plaintiffconsents to an amendment, the Court should have the amend-ment made, and order the issue of summons accordingly. If theplaintiff does not consent 'to the amendment, the Court shouldorder the issue only of an ordinary summons.
NATCHIAPPA CHETTY v. TAMBYAH