039-NLR-NLR-V-53-NATIONAL-BANK-OF-INDIA-LTD.-Appellant-and-KALIAPPAPILLAI-et-al.-Respondents.pdf
National Bank of India, Ltd. v. Kaliappapilldi
186
-1950Present : Basnayake J. and Gnnasekara J.NATION AX, BANK OF INDIA, LTD., Appellant, andK ATJAPPABILLAI et al.t Respondents
S. C. 89—D. G. (Inty.) Colombo. 18,570M
Commission to examine, witnesses abroad—Stage at which Court will issue commission—Civil Procedure Code (Cap. 86) s. 423.
Under section 423 of the Civil Procedure Code, an application for the issneof a commission to examine a person outside Ceylon will be granted only atthe Btage when it appears that the evidence of snch person is necessary.
A PPEAX from an order of the District Court, Colombo.
N. K. Choksy, K.O., with Vernon Wijetunge, for the defendant appellant.
H.' V. Perera, K.G., with R. Manikkavasagar, for the plaintiffsrespondents.
Our. adv. vvlt.
(1941) 42 N. L. R. 344.
BASNAYAKE J.—national Bank of India, Ltd. e. KaUappapillai187
November 2, 1950. Babnayakk J.—
The plaintiffs- in this action are three persons carrying on business-in partnership. under the name, style, and firm of K. M. Kaliappapillaiand Company in Colombo, and the defendant is the National Bank ofIndia, Limited.
The plaintiffs seek to recover a sum of Rs. 65,285.32 from the defendantBank being damages sustained by the plaintiffs in consequence of thedefendant Bank acting contrary to the .terms of the letter of credit-granted by them.
The letter of credit is in the following terms:
" Confirmed Irrevocable and Without Recourse
CREDIT
Bank No. 84/2,190Amount £16,800 Stg_
To the Manager,
National Bank of India, Ltd.,
Colombo5th December, 1946.
Dear Sir,
I/We shall feel obliged by your giving authority to your Agents inLourenco Marques by cable to negotiate the drafts of Messrs. DayalKhatau & Sons, Lourenco Marques on me/us to the extent of Pounds-Sixteen Thousand Bight Hundred Sterling drawn at Sight againstShipping documents (consisting of on Board Bill of Lading, Invoice andPolicy and/or Certificate of Insurance covering Marine and War Risk),representing Shipment or Shipments of Two Hundred Tons WhiteJuwari and Two Hundred Tons Bajree. Import Licence EFS/EA/46/230.Part shipment allowed. All prices per ton of 2,240 lbs. C.I.F. Colombo.
It is understood that the Bank is not to be responsible for the genuine-ness or the accuracy of such shipping documents if apparently in order.
In consideration of such drafts or documents being purchased ornegotiated by your—Agents in Lourenco Marques I/we hereby agreeduly to accept and pay the same at maturity, provided they shall notexceed in the whole the sum of Pounds Sixteen Thousand Bight HundredSterling as aforesaid and provided such draft or drafts be so negotiated.15-1-47. E2 Cr. 3729 of 4-12-46.
Yours faithfully,
K. M. Kaliappapillai & Co.
(Sgd.)
Manager.
This credit is confirmed by the National Bank of India, Ltd.
(Sgd.) E. Maconochie,p. Manager:”
186
BASNAYAKE J.—National Bank' of India, Ltd. v. Kaliappapillai
The plaintiffs contend that the defendant Bank contrary to the termsof the letter of credit paid money on three drafts which represented ashipment of 200 tons of millet.
The defendant denies that it acted outside its authority and assertsthat the drafts were negotiated in conformity with the plaintiff’sauthority.’
Before the trial and the settlement of the issues the Proctors for the-defendant Bank filed an application under section 423 of the CivilProcedure Code praying that a Commission be issued to Capitao AntonioDos Santos Figueiredo, the President of the Government Exchange•Council and Director of Statistics of Lourenco Marques, to record the•evidence of the following witnesses: —
Prahbudas Bhimjee, Managing Partner of Messrs. Popatlal &
Companhia of Lourenco Marques,
Eamji Meghji, Manager of Messrs. Damodar Mangalji & Co. ofLourenco Marques,
Damodar Bonavidas, President of the Indian Chamber of Com-
merce of Lourenco Marques.
The petition alleged that the witnesses are not' in the employ of thepetitioner and that the witnesses are unable to come to Colombo to give•evidence and that it is necessary in the interests of justice that theevidence of the witnesses be recorded on commission. It is also allegedin the petition that the evidence of these witnesses is necessary in orderto ascertain whether the term “ Millet ” and “ Bajree ” are recognised.as applicable, to the same commodity in Lourenco Marques, SouthAfrica. It is contended for the petitioner that this investigation isnecessary because the goods were described in the relative Bill of Ladingas *“ Millet Seed ” and in the invoice as “ Millet (Bajree) ”.
Questions of law which affect the main issues which are likely to.arise in the case were argued before us, but we wish to refrain fromexpressing any opinion on those questions as the trial of the case is yetto take place.
In regard to the question that arises for decision on this appeal, it issufficient to say that a person making an application for the issue of.a commission for the examination of a person residing at any place notwithin the Island must satisfy the Court that his evidence is necessary.In the instant case the proceedings have not reached the stage when itis possible for a Judge to state whether the evidence of the personsmentioned in the petition of the petitioner is necessary or not. Wehave construed the Judge’s order as, amounting to a finding that the•evidence of those witnesses is not necessary, but it does not appearfrom the proceedings that the learned District Judge focussed hisattention on the provisions of section 423 of the Civil Procedure Code.That section reads:
‘ ‘ "When .tiny court to which application is made for the issue of acommission for the examination of a person residing at any placenot within the Island is satisfied that his evidence is necessary, thecourt may issue such commission.”
Ponnusamy v. Alphontus
189
We observe that in seeking the assistance of English decisions for-determining the true scope of our enactment the language of theCode should not be overlooked, and it should be borne in mind that theEnglish rule is not in exactly the same terms as our enactment. Anotherfactor that should be taken into account in considering the older casesis the vast improvement in the speed of travel in modem times.
On the material before us we are of opinion that it is premature to■state whether the evidence of the witnesses named by the petitioner isnecessary or not. After the issues have been settled or even at a laterstage it may appear that the evidence of any particular person or personsresiding at any place outside the Island is necessary. Then it is opento the party relying on the evidence of such witnesses to make ah.application for the issue of a commission.
As we are not satisfied on the material before us at this stage thatthe evidence of the witnesses cited by the petitioner is necessary, wowould dismiss the appeal with costs.
In order to remove doubts as to the right of the petitioner to make afresh application under section 423 of the Civil Procedure .Code, shouldit become necessary to do so in the course of the trial, we wish to record■that the dismissal of this appeal will be no bar to such an application.
Ounaskkara J.—I agree.
Appeal dismissed.