104-NLR-NLR-V-62-P.-C.-MEYAPPAN-and-others-Appellants-and.-K.-S.MANCHANAYAKE-Respondent.pdf
SAJSTSONI, J.—Meyappnn v. 31unchanayake523
Present :Sansoni, J., and L. B. d© Silva, J.
P. C. MEYAPPAN and others, Appellants, mid. IC. S.
MANCHANAYAKE, Respondent
£. O. 315—D. C. Colombo, 36277/M
Cheques—Partnership—Signature by rubber stamp—Validity—Bills of Exchange
Ordinance (Cap. GS), ss. 2, 23, 92 (J)—Evidence Ordinance, s. G7—Civil
Procedure Code, ss. 5, 155 el seq.—Interpretation Ordinance {Cap. 2), s. 2 {q).
When a cheque is required to ho signed by a partnership, the affixing of arubber stamp which merely bears the name of the firm is not a valid signatureunless there is added to the name so stamped a signature of a por3on verifyingthe so-called signature to show that it was placod there with the authorityof the firm.
The 2nd, 3rd and 4tli defendants were partners carrying on businoss in thename of Nirchalananthan Co. Four cheques drawn bv the 1st defendantpayable to bearer were indorsed with a rubber stomp which morely boro t.ioname Nirchalananthan Co. This name was indorsed with a rubber stampon the back of each cheque by the cashier of the firm, on the instructions of the2nd defendant, beforo the cheques were delivered to the plaintiff by the 2nd.defendant.
Held, that the more stamping of tlie firm’s name was not a sufficient signaturewithin tho mdaning of section 92 (1) of tho Bills of Exchange Ordinance for thepurpose of rendering the firm liable as indorsors.
“ If tho signature of a partnership is required, one of tho partners shouldwrite the name of his firm with his own hand, or it should be written l>y handby a duly authorised agent. A so-called signing by stamping tho namo of thofirm without anything to verify it, as in the present case, is no signing at all. ”
A-PPEAL from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.C., with M. Marlchani, N. R. M. Daluwatte andD. S. Wijeivardene, for 2nd and 3rd Defendants-Appellants.
Ranganathan, with M. Shanmugalingam and K. Palakidnar, forPlain tiff-Respondent.
Cur. adv. vult.
March 10, 1061. Sansoni, J.—
This ia an appeal by the 2nd and 3rd defendants, who, with the 4tlidefendant, are partners carrying on business in the name ofNirchalananthan Co. Judgment was entered against them on fourcheques which were drawn by the 1st defendant payable to bearer and23—l,xii
1*—J. N. It 10007-2,033 (5/01)
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SANS ONI, J.—Meyappan v. Matteltanayakc
endorsed with a rubber stamp which bore the name Nirchalananthan Co.This name was stamped on the back of each cheque by the cashier ofthe firm, on the instructions of the 2nd defendant, before the chequeswore given to the plaintiff. The question for decision is whether the 2ndand 3rd defendants as partners are liable on these cheques.
The learned District Judge considered that Section 92 (1) of the Billsof Exchange Ordinance Cap. 68 had not been complied with, as thestamping of the firm’s name was not a signature within the meaningof that section. But he held that the 2nd and 3rd defendants were,nevertheless, liable because the cheques had been delivered to the plaintiffby the 2nd defendant. The latter finding has not, quite correctly, beensupported by counsel for the plaintiff in view of section 23 whichprovides that no person is liable as drawer, endorser or acceptor of a billwho has not signed it as such. The only question for decision now iswhether the learned Judge was correct when he held that the merestamping of the firm’s name is not a sufficient signature for the purposesof rendering the firm liable.1
Mr. Jayewardene for the appellants relied strongly on section 67of the Evidence Ordinance which reads : “If a document is allegedto be signed or to have been written wholly or in part by any person,the signature or the handwriting of so much of the document as is allegedto be in that person’s handwriting must be proved to be in his hand-writing.” He argued that under this section a document cannot besaid to be signed unless the signature is written by hand. He alsorelied on section 155 and other sections in Chapter 19 of the CivilProcedure Code which deal with the admission of documents in evidence,and referred us to the definition of the word “ signed ” in section 2 {q)of the Interpretation Ordinance, Cap. 2 which reads : “ ‘ sign ’, withits grammatical variations and cognate expressions, shall with referenceto a person who is unable to write his name, include ‘ mark * with itsgrammatical variations and cognate expressions.” His argumentbased on these provisions was, in short, that a document cannot be saidto be signed unless the signing is written by hand. I do not think thesestatutory provisions go as far as Mr. Jayewardene urged. The EvidenceOrdinance and the Civil Procedure Code in the sections quoted do notlay down how documents should be executed : they merely deal withthe question of how a document which has been signed by hand may beproved ; and according to those provisions, where a document is allegedto have been signed or written by the hand of a person, a "witness called■ to prove the genuineness of that document must be able to identifythe handwriting on the document as the handwriting of that person.There is no question that a document can be signed with a mark, forboth section 2 (q) of the Interpretation Ordinance and section 5 of theCivil Procedure Code define the word “ sign ” as including “ mark ”,when tho person making the mark is unable to write : in such a case,in order to prove due execution, the making of the mark by that personmust be proved.
SANSONI, J.—Meyajypan v. Jtfanchanayakc
531
I como back to the point as to the meaning of the words “ sign ” and“signature” in section 92 (1). Some recent decisions of the Com tof Appeal in England were cited to us, and the first case X should liketo refer to is Goodman v. J. Eban Ltd.1. Under the Solicitors’ Act,1932, a solicitor’s bill of costs had to be signed by the solicitor, or theletter accompanying it had to be so signed. It was held in that casethat where the signature of the solicitor consisted of a facsimile of hishandwriting affixed by means of a rubber stamp, the Act had beencomplied with. Evcrshed M.R. who, with Rumcr L.J., came to this con-clusion followed earlier cases such as Bennett v. Brumfilt 2 and Jenkins v.Gaisford <0 Tfiring3. They were cases dealing not with the Bills ofExchange Act, but other Acts which required signing, where it was heldthat a facsimile of a person’s ordinary signature stamped on a documentwas a sufficient signing. But Evershed M.R. expressly reserved hisopinion on the question “ whether the same result would follow if the‘ signature ’ impressed by the stamp was not a facsimile representationof the solicitor’s handwriting, but a mere typed or printed representa-tion of his name or the name of his firm ”, “ for,” he said, “ it wouldnot appear to carry the same warrant of authenticity.” On this point,he referred to the decision in Ilegina v. Cotoper4, where the DivisionalCourt held that a lithographed representation of a solicitor’s name isnot a signature by him. Homer E.J. was prepared to go further thanEvershed M.R. and quoted with approval the definition of “ signed ”and “ signature ” in Stroud’s Judicial Dictionary, (3rd Edition) whichsays :“ Speaking generally a signature is the writing, or otherwise
affixing, a person’s name, or a mark to represent his name, by himselfor by his authority, with tho intention of authenticating a documentas being that of, or as binding on, a person whose name or mark is sowritten or affixed.” But the judgment of Denning L.J. was uncompro-misingly opposed to tho word “ sign ” including the use of a rubberstamp with a facsimile signature in cases under the Solicitors’ Act. Hoexplained the earlier decisions by the nature of the particular documentsunder consideration and added : “ Has anyone ever supposed that aman can sign a Bill of Exchange or a cheque by means of a rubber stamp ?Or that a man can execute or witness a transfer of shares in such a way ? ”It would seem that while Evershed M.R. was prepared to grant validityto a facsimile representation of the solicitor’s handwriting, ho was notprepared to go as far as Romcr L.J. in regard to the use of rubber stamps.
In the case of London County Council v. Agricultural Food Products,Ltd.,5 decided in the following year, Denning L.J. said : “ In the ordinaryway when a formal document is required to be * signed ’ by a personit can only bo done by that person himself writing his own name uponit, or affixing his own signature upon ft with his own hand, see Goodman
{1SG3) 3 Siu. and T. 03.
(ISOO) 24 Q.B.D..533.
{1034) 1 Q.B. 530.
3 G.P. 2S.
6 {1955) 2 Q.B. 213.
532
SANS ONI, J.—Meyappan v. Manchanayake
v. J. Eban Ltd.1 ; but there are some cases where a man is allowed to signby the hand of another who writes his name for him. Such a signatureis called a signature by procuration, by proxy, * per pro ’, or more shortly‘ p.p’ ”, In that case a valuer’s assistant signed the name of the valuerwith his own hand, but without adding anything to show that it was asignature by proxy. It was held that it would be a good signature bythe valuer, provided it was authorised by him. Two cases were followedin arriving at this decision—Reg. v. Kent Justices2 and France v. Dutton3.
In these cases a clerk had written the name of his employer with thelatter’s authority, but without adding anything to show that the signa-ture was written by proxy, and the signature was held to be good.Denning L.J. said that section 91 (1) of the Bills of Exchange Act, 1882,which is. the same as section 92 (1) of the Bills of Exchange Ordinance,proceeds on the same footing as those cases, and is a statutory recognitionof the rule in Reg. v. Kent Justices2.
The last case which I need refer to is Lazarus Estates Ltd. v. Beasley*.Certain documents issued by a company were stamped with a rubberstamp “ Lazarus Estates Ltd.” and Denning L. J. said this about them :
“ The statutory forms require the documents to be ‘signed’ by the land-lord, but the only signature on these documents (if such it can be called)was a rubber stamp ‘Lazarus Estates Ltd.’ without anything to verify it.There was no signature of a Secretary or of any person at all on behalfof the company. There was nothing to indicate who affixed the rubberstamp. It has been held in this Court that a private person can sign adocument by impressing a rubber stamp with his own facsimile signatureon it : see Goodman v. J. Eban Ltd J, but it has not yet been held that acompany can sign by its printed name affixed with a rubber stamp.”It must be conceded that this expression of opinion was obiter, and thetwo Lords Justices who sat with Denning L. J. did not deal with thispoint, but I think the dictum has great persuasive weight on the pointwe have to decide in the present case.
•
While the opinion of Denning L. J. on the question of how a solicitorshould sign a bill of costs has to be disregarded, I think that his views asto the validity of a so-called signature with a rubber stamp which merelybears the name of a firm find support in the opinion of Evershed M. B,.already quoted. The correct view, I think, is that unless there is addedto the name so stamped a signature of a person verifying the so-calledsignature to show that it was placed there with the authority of the firm,the document cannot bo regarded as validly signed. Ho case has goneso far as to hold that the mere stamping of the name of a firm, be it acompany or a partnership, on a document is a valid signature by thatfirm.
{1954) 1 Q. B. 550.
{1873) S Q.B. 305.
{1891) 2 Q.B. 208.
{1956) 1 Q.B. 702.
S A2STSONT, J.—hdeyappan v. Afaiichanayake
533:
Mr. Ranganathan relied on the definition of ** written ” in section2 of the Bills of Exchange Ordinance, which reads : '* ‘Written’ includesprinted, and ‘writing’ includes print.” But section 2 starts with thewords “ In this Ordinance, unless the context otherwise requires .. ”
There is a definition in similar terms in the Bills of Exchange Act, 1882,while section 20 of the Interpretation Act, 18S9, enacts that in Acts ofParliament “ expressions referring to writing shall, unless the contraryintention appears, be construed as including reference to printing, litho-graphy, photography, and other modes of representing or reproducingwords in a visible form.” I do not think that this definition of the word“ written ” affects the meaning to be given to the words of section 92 (1)to the extent suggested by Mr. Ranganathan. I do not suppose thatDenning L. J. overlooked these provisions of the English Acts when heexpressed his views in the cases I have referred to. As a matter of lan-guage, giving the words their ordinary meaning, when a document isrequired to be signed, or when a person’s signature is required on adocument, the person’s name should be written by hand with a pen orpencil. That was the view of Evershed M. R. and Denning L. J. in Good-man v. J. Eban Ltd.1. If the signature of a partnership is required,one of the partners should write the name of his firm with his own hand,or it should be written by hand by a duly authorised agent. A so-calledsigning by stamping the name of the firm without anything to verify it,as in the present case, is no signing at all.
We are being asked in this case by the plaintiffs to extend the meaningof the word “ signed ” to a limit which has never yet been reached, as faras I am aware, in any decided case. One must be careful not to introducea new rule where one is dealing with documents to which the Bills ofExchange Ordinance applies, for, as is observed in Chalmers’ Bills of Ex-change (12th Edition) page 274 “ Legal analogies must be applied withcaution to bills which are the creation of custom, and where it is of theutmost importance that a clear title should appear on the face of theinstrument.” I doubt whether in the case of a bill of exchange even afacsimile reproduction of a person’s signature would bo sufficient,although it might bo considered valid for the purposes of the Solicitors’Act and other Acts. The negotiability of such instruments as bills,notes and cheques would, I think, be seriously affected if the use of rubberstamps in the manner adopted in this case were to be countenanced.
I would accordingly hold that the endorsement in question is invalid,,and allow the appeal of the 2nd and 3rd defendants with costs.
De Sit.va, J.—I agree.
Appeal allowed.
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