049-NLR-NLR-V-37-PERERA-et-al.-v.-TOUSSAINT.pdf
250
SOERTSZ AJ.—Perera v. Tonssaint.
1935Present: Koch J. and Soertsz AJ.
PERERA et al. v. TOUSSAINT.
153—D. C. Anuradhapura, 1,836.
Prescription —New party added as plaintiff to action—Date of action for purposeof prescription—Book-debt—Ordinance No. 22 of 1871, s. 9.
Where, on objection taken to an action that it was not rightly-constituted, a party was added as plaintiff, the crucial date for ascer-taining whether the action is statute barred or not is the date on whichthe right plaintiff came into the case.
A claim to recover money due for board and lodging in a hotel is abook-debt within the meaning of section 9 of the Prescription Ordinance.
PPEAL from a judgment of the District Judge of Anuradhapura.
H. V. Perera (with him M. T. de S. Amarasekere and D. W. Fernando),for defendant, appellant.
No appearance for plaintiff, respondent.
August 19, 1935. Soertsz A.J.—
One B. Stephen Perera in his capacity as manager of the National Hotel,Anuradhapura, brought this action on December 7, 1932, to recover fromthe defendant, the manager of her lunatic husband, a sum of Rs. 685.01which he alleged was the balance due on account of board and lodgingprovided for the lunatic between October 1, 1929, and December 8, 1931.The total amount incurred by the defendant’s husband during thisperiod was said to be Rs. 923.30, but this account was credited with twopayments made by one Samaraweera who, in making those paymentsprofessed to act for and on behalf of the lunatic. The dates of these twopayments are April 30 and of December 8, 1931.
SOERTSZ AJ.—Perera v. Toussaint.
251
The defendant filed answer on April 26, 1933, and contended, inter alia,that the action was not maintainable by the plaintiff (a) as the businessname of the hotel which the plaintiff represents has not been registeredunder the provisions of Ordinance No. 6 of 1918; (b) as the claim preferredby him is prescribed.
With regard to the first legal defence of non-compliance with therequirements of the Registration of Business Names Ordinance, thedefendant’s proctor admitted that it failed when the certificate of regis-tration was produced and the case was fixed for trial on the question of“ prescription ”. On the trial date, the defendant’s proctor raised thefurther issue: Has the plaintiff any authority to sue on behalf ofHaramanis Appu, who is the registered owner of the hotel ? Thereupon,plaintiff’s proctor moved to add Haramanis Appu as added plaintiff.This motion was opposed, but the District Judge allowed it and madeHaramanis Appu added plaintiff. This took place on November 3, 1933.Now, in my opinion, directly the certificate of the registration of businessnames was produced, it became quite clear that the proper party to suewas not the original plaintiff, the manager of the hotel, but the registeredproprietor, and the proper course was to substitute him as plaintiff undersection 13 of the Civil Procedure Code and not to add him as a party.There was no occasion whatever for both the manager and the proprietorcontinuing as plaintiffs. I do not know whether this course was adoptedin order to get round the provisions of the Statute of Limitations. Ifthat was the intention, I do not think it can avail the real plaintiff forthat purpose. The crucial date for the ascertaining of whether the causeof action was statute barred or not, is the date on which the right plaintiff,in this case the proprietor, came into the case, and that is November 3,
By that date the cause of action, if it arose from a book-debt,was barred even if the payment of December 8, 1931, be taken intoaccount. Did this cause of action arise from a book-debt ? In myopinion, the answer is in the affimative on the authority of Dalton J. inPate v. Mack In that case the definition given by Lord Esher in TheOfficial Receiver v. Toilly a is cited : —“ The expression book-debts is notin itself vague. It means debts arising in trade or business in which it isusual to keep books, not necessarily those actually put into books, butthose which ought to be booked in ordinary course ”. In view of thatdefinition it is clear that the debt sued for in this case is a book-debt andas such is barred in our law by section 9 of Ordinance No. 22 of 1871 inone year. For that reason, the plaintiff’s action, in my opinion, falls tobe dismissed. The difficulty cannot be surmounted by retaining on therecord the name of a person who came into the case as plaintiff without aright to do so and by vaguely entering “ judgment for plaintiff as prayedfor with costs”. For the bubble is pricked the moment one puts thequestion “ Judgment for which plaintiff ” ? In my opinion, a motion toadd or substitute Haramanis Appu as plaintiff should not have beenentertained at the stage at which it was made. As pointed out byScrutton L.J. in Mabro v. Eagle, Star and British Dominions InsuranceCompany, Ltd.,’ “ The Court has always refused to allow a party or» 28 N. L. It. 321.= 56 L. J. O. B. 30.
» (1932) 1 K. B. 485.
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SOERTSZ A.J.—Perera v. Toussaint.
a cause of action to be added where, if it were allowed, the defence of theStatute of Limitations would be defeated. The Court has never treatedit as just to deprive a defendant of a legal defence. If the facts showeither that the particular plaintiff or the new cause of action sought tobe added are barred, I am unable to understand how it is possible for theCourt to disregard the Statute ”. The District Judge has not consideredthis view of the matter at all. He has found for the plaintiff on thefooting that the case was instituted on December 7, 1932, and that thepayment of December 8, 1931, took the debt out of the Statute. Let usassume that this action is to be regarded as having been instituted onDecember 7, 1932. The question still arises whether the payment ofDecember 8, 1931, by Samaraweera can be considered a payment properlymade on behalf of the debtor. There is evidence to show that Samara-weera had been the lessee of Toussaint’s land till September, 1930, andhad been paying Toussaint Rs. 225 a quarter as rent. After the expiryof the lease Toussaint and the plaintiff—it is not said which plaintiff—saw Samaraweera and “ Toussaint asked him to collect the income fromthe land and pay plaintiff on account of his hotel bill ”. In pursuance ofthis he collected Rs. 210 up to the end of April, 1931, and paid Rs. 170to the plaintiff, and again on December 8, 1931, a further sum of Rs. 68.18.Samaraweera’s evidence that the plaintiff and Toussaint both saw himand that it was Toussaint who asked him to collect the income and payhis hotel bill is contradicted by his letter D 5 dated December 23, 1931, -addressed to the defendant in which he says, “ I paid the income of theland to the manager of the National Hotel as it was he who gave the landover to me This is the more probable version. The impression onereceives from all the evidence in the case is that at this date Toussaintwas of unsound mind and could not have done what he is said to havedone. If I had been the trial Judge I should have held on D 5 that thepayments made by Samaraweera were not payments made at the requestand with the authority of Toussaint, but as the result of an arrangementbetween himself and the manager of the hotel and that, therefore, thosepayments did not affect Toussaint in the manner suggested. But thetrial Judge has found that these payments were made by Samaraweera atToussaint’s request. I will, therefore consider the question on thatview of the facts. According to the manager of the hotel, Toussaint andhe saw Samaraweera in November or December, 1930. It was, therefore,in November or December, 1930, that Toussaint gave SamaraweeraAuthority to make payments on his behalf. But directly Toussaint wasadjudicated a lunatic in April, 1931, and of this adjudication Samara-weera was aware, his authority was at an end. (Vide Drew v. Nunn1and Yonge v. Toynbee )
In my opinion, therefore, the payments of December 8, 1931, did notavail to stop the Statute from running and the plea of prescription takenby the defendant is entitled to succeed. I allow the appeal and dismissthe plaintiff’s action with costs in both Courts.
Koch J.—I agree.
Appeal allowed.
* iiaiOi I K. B. Jli.
4 Q. R. n. Mil.