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Present : Dalton J. and Maartensz A.J.
PALANIAPrA CHETTY v. AZEEZ ct at.
207—D. C. Colombo, 26,364.
Money Lending Ordinance—Note endorsed in blank—Unenforceable—Not a fictitious note—Ordinance No. 2 of 1918, s. 10 (1).
Where a blank promissory note was endorsed to (he plaintiffwho subsequently 'filled it up,—
Held, that the note was unenforceable by the plaintiff.
PPEAL from a judgment of the District Judge of Colombo.
Garvin., for plaintiff, appellant.
Choksy, for defendant, respondent.
November 12, 1929. Dalton J.—
This action was to recover the sum of Bs. 1,000 alleged to bedue on a promissory note. The first defendant, to whom theloan is said to have been made, had been declared insolvent, andthe second defendant, the endorser of the note, set up in his defence,among other things, that the note had been given in blank by thefirst defendant to the plaintiff and that the latter had subsequentlyfilled up the note. When the issues were framed it seems to havebeen assumed that under the Money Lending Ordinance, 1918; ablank note is a. “ fictitious ” note within the meaning of the Ordi-nance; and the learned District Judge leaving found that the seconddefendant’s contention was satisfactorily proved, held that thenote was “ fictitious ” within the meaning of section 14 of theOrdinance and that the action could not be maintained.
Accepting his finding as to the note having been given in blank—for with that finding I am not prepared to disagree—the note clearlydoes not come within any of the cases provided for by section 14.The Ordinance in more than one section distinguishes betweenblank notes and “ fictitious ” notes, vide section 2 (1) (c) andsection 13'. The notfi- sued on here is not then a ‘ ‘ fictitiousnote within the meaning', of section 14, but nevertheless it is notenforceable on the facts here owing to the fact that the provi-sions of section 10 have not been complied with. The necessaryparticulars have not beeen set out in the note. I state “on thefacts here ” because if the plaintiff were the bona fide holder forvalue of the note without notice' of any matter affecting theenforceability of the note, he would not be debarred by any-thing iiP'section 10 from recovering what is due on the note.But the finding of the learned Judge is to. the effect that he took
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1929 the note in blank and subsequently filled it in. He cannot, theve-__ fore, say he was not aware of the fact that the note was not enforce-
—able under the Money Lending Ordinance. The judgment of thetrial Judge must therefore be affirmed, but for the reason now
Azeez ' given.
A request was then made to the Court by the appellant forrelief, on- the ground of inadvertence, but there is nothing beforeus to justify such an apidication.
The appeal must- be dismissed with costs.
Maahtensz J.—I agree.
PALANIAPPA CHETTY v. AZEEZ et al