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PETTACHI GHETTY v. MOHAMADO YUSOOF.
D. C., Colombo, No. 82,535.*
Principal and agent—Mercantile custom of Natukotta Chetties—Action by
principals on bond granted to their agent—Meaning of " Pe. he. Venaitirtan
It is the custom among the Natukotta Chetties of South India whocarry on trade in Ceylon to describe themselves by the names of theindividuals who constitutethe firm, andto prefix to each name the
initial letters of the firm. Their agents, when signing for theirprincipals, usually sign their own names, prefixing to them the initialletters of the firm for which they act. If an agent signs on his ownaccount, he signs his own name and prefixes to it the initial letters ofof his own patronymic.
One Nu. Vu. MuttiahChetty,havingbeen appointedthe agent of
Pe. Le. Pettachi Chetty,Pe. Le.Periannan Chetty, Pe.Le. Sinnaiya
Chetty, and Pe. Le. Narayanan Chetty of South India, came to Colomboand carried on their business, signing himself “ Pe. Le. Muttiah Chetty."
Defendant, having had monetary dealings with Pe. Le. Muttiah Chetty,was informed by him that he was going to India, and that his principalswould send out another agent.
Mu. A. Bu. Venaitirtan Chetty was appointed such agent, and when hearrived in Colombo defendant signed a bond in favour of "Pe. Le.Venaitirtan Chetty," andreceivedseveralloans from himamounting to
over Bs. 40,000.
Venaitirtan died at Colombo, and Muttiah, re-assuming the managementof the firm of Pe. Le., put the bond given to Pe. Le. Venaitirtan Chettyin suit. He brought ..the suit in the name of the four principals whoconstituted the firm of Pe. Le.
Held, that the bond in question was not granted by the defendant toVenaitirtan Chetty in his private capacity, but to the firm of Pe. Le.
HIS was an appeal preferred by the defendant against a judg-ment condemning him to pay to the plaintiffs, Pe. Le.
Pettachi Chetty, Pe. Le. Periannan Chetty, Pe. Le. Sinnaiya Chetty.
* Beported at the request of Mr. Browne, D.J. of Colombo.—Ed.
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and Pe. Le. Narayanan Chetty, who were carrying on business inColombo and other places under the name and style of “ Pe. Le., ”certain sums of money due upon certain promissory notes payablein terms of a bond which the defendant bad signed in favour ofone Pe. Le. Venaitirtan Chetty.
The facts in detail appear in the judgments given below.
The case came on for argument before De Wet, A.C.J., Clarence,J., and Dias, J., on the 13th March, 1883.
Van Langenberg (with him Brito and Dornhorst), for defendant,appellant.
Grenier (with him Seneviratne), for plaintiffs, respondents.
Cur. adv. vult.
19th April, 1883. De Wet, A.C.J.—
This is an action upon a bond dated X9th' December, 1878, where-by the defendant bound himself to retire or pay at maturity suchpromissory notes as should be discounted by plaintiffs under theterms and provisions of the bond. For the due payment of thenotes so discounted certain properties mentioned in the bond werehypothecated. The plaintiffs now sue for the amount due uponthe bond and for a decree declaring the property hypothecatedexecutable.
The defendant admits the due execution of the bond, but allegesthat the bond was executed by him in favour of Pe. Le. P. Chetty inhis private capacity, and not as agent of the plaintiffs, and denies“ that there is due and owing from defendant to plaintiffs the sumclaimed in the libel. ”
From the evidence adduced in the case it appears that, at a timeanterior to the execution of the bond in question, the plaintiffs hadtraded together in rice and money-lending under the style and firmof r‘ Pe. Le. ” at Colombo, Jaffna, Arracan, and other places; and.that while so trading one Muttiah acted as their agent in Colombo from1875 to 1878. During this time he had certain money transactionswith the defendant, and it is quite clear that in their moneytransactions defendant was well aware that Muttiah was acting forand on behalf of plaintiffs: On the 30th July, 1878, Muttiah leftColombo. About two days prior to his departure from Colombo,he (Muttiah) went to the defendant and informed him that he wasgoing to leave, and that his principals Pe. Le. were going to sendone Venaitirtan Chetty to Colombo to manage the affairs in his(Muttiah’s) place, and that in the meantime one Arunasalam wouldattend to the business of the firm. It is important to observe thatwhile Muttiah acted for his principals at Colombo he adopted the
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name of the firm thus:“ Pe. Le. Muttiah Chetty, ” and while acting
in his private business matters he signed his name thus: “ Nu. Vu.Muttiah Chetty. ” After his departure from Colombo he met hisprincipals, and it was then arranged that Venaitirtan Chetty shouldproceed to Colombo and enter upon his duties as agent of plaintiffsfor the purpose of trading and money-lending.
Before, however, leaving for Colombo the document producedin evidence marked H was written and signed by him in thepresence of Muttiah and the plaintiffs. A translation of thisdocument is as follows: —
“ The document settling wages written on the 29th day of Thaiof the Isuwen year at Madura. I shall, as paid servant, proceedwithout delay to the boutique of Pe. Le. at Colombo, and carried onby Pe. Le. Pettachi Chetty, Pe. Le. Periannan Chetty, Pe. Le.Sinnaiya ■ Chetty, and Pe. Le. Narayanan Chetty, and shall takecharge of the boutique and carry on the business of the aforesaidperson, styling myself Pe. Le. Venaitirtan Chetty. And for socarrying on the business the aforesaid four persons shall payme for a period of three years 950 pagodas, equal to Rs. 3,325,besides clothes and boarding, &c., which shall also be at theexpense of the said four persons. The business and money whichmay be lent on mortgage bonds, promissory notes, and accountsand lands purchased by me at Colombo in the name of Pe. Le.Venaitirtan Chetty shall belong exclusively to my aforesaid fourprincipals, and neither I nor my heirs shall in any manner haveany claim to the said moneys, lands, or goods, or to any partthereof.
“ To this effect,
(Signed) “ Mu. A. Ru. Venaitirtan Chetty.
“ Witness:Pe. Le. Muttiah Chetty. ”
After the execution of this document the power marked R washanded to Venaitirtan Chetty. This document ex facie purports tobe a power of attorney from the persons there stated to act for Pe.Le. Muttiah Chetty in his personal capacity, but, looking at thesymbol of the firm Pe. Le., as it appears upon the document, andalso looking at the surrounding circumstances connected with thedocument in question, I am clearly 'of opinion that in giving thepower of attoney Muttiah gave the same as agent of the plaintiffs’firm, and therefore delegated his own functions as Colombo agentof that firm to the persons named, which delegation, it is proved,was subsequently ratified by the plaintiffs’ firm. The power ofattorney is that of Pe. Le. Muttiah Chetty in favour of Pe. Le.Venaitirtan Chetty and Pe. Le. Arunasalam Chetty, and Venaitirtan.Chetty, at this time in very poor circumstances, subsequently
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arrives in Colombo about the 19th February, 1878, and while actingfor plaintiffs with full knowledge of such capacity the defendantexecutes the bond in question. It is again important to observewho are the parties to this bond: clearly, Mohamado CassimMohamado Usoof and Pe. Le. Venaitirtan Chetty.
After the execution of the bond large sums of money wereadvanced by the obligee to the obligor on the bond. In alleighteen promissory notes were made and endorsed by thedefendant from dates ranging between the month of February,1879, and 2nd August, 1879, and amounting to the sum ofRs. 41,771.18. These notes, plaintiffs allege, remain still unpaid.
Venaitirtan died at Colombo on 1st May, 1880. This fact was atonce communicated to the plaintiffs’ firm; and Muttiah was there*upon despatched to Colombo to look after the affairs of the firm.Upon his arrival at Colombo A runasalam handed to him all papersand documents connected with Venaitirtan’s agency. Amongstthe documents so handed to Muttiah are the promissory notesproduced at the trial of the case.
Plaintiffs maintain, and I consider rightly, that the defendant isindebted to them upon the amounts appearing upon the notes.Defendant, however, contends that the notes in question weremade by him in favour of Venaitirtan in his private capacity, thatthese have been satisfied, and that those bearing his endorsementhave still to be satisfied. Before any evidence was advanced atthe trial defendant’s counsel admitted “ that the notes marked L 1to L 18 (notes in question) are notes referred to in the answeras discounted for the defendant. ” At the hearing of the casedefendant produced a receipt, copy of which is as follows:—“ 1880,April 13. I, Pe. Le. Venaitirtan Chetty, do write and give toMohamado Cassim Mohamado Usoof this receipt from 1897,August, to 1880, April 13. I have received from him in full allmoney due to me on promissory notes signed by him as matter, anddo give this receipt. Pe. Le. Venaitirtan Chetty.”
In addition to the production of this piece of paper defendantsays in his evidence, “ I have not fully settled Venaitirtan’s claim. ”This is a somewhat vague statement, but the vagueness is clearedup by what he says in his petition of appeal, “ that the appellanthas discharged a large portion of the d.ebt due on the bond. Heretired, as they fell due, the promissory notes made by him, and hehas still to pay the amounts of the promissory notes endorsedby him. ”'
Looking at the evidence for the defence, I must say I am notsatisfied with the same, and that I consider the so-called receipta spurious document. The promissory notes come from the
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possession of plaintiffs, made and endorsed in terms of the bond.No satisfactory reason has been given why these notes were also notreturned to defendant upon payment made by him. There is alsono endorsement upon the bond of any payments. Taking thesefacts in conjunction with the very strong evidence of both Muttiah..and Arunasalam as to the money transactions between .thedefendant and plaintiffs' firm, I am of opinion that the appealmust be dismissed with all costs in this Court and in the Courtbelow. 1 have looked at the proxy, and am of opinion that, takinginto consideration the evidence and all .the documents producedhaving reference thereto, it was a good and valid one, andempowered the proctor to act for and on behalf of theplaintiffs.
This is an action on a bontd, the plaintiffs on the record beingfour Chetties trading under the Tamil firm of “ Pe. Le.” Byshe bond, the making of which defendant admits, defendantconvenanted with the obligor, who is described in the bond asPe.. Le. Venaitirtan Chetty, to retire at maturity such promissorynoics as the obligor might thereatfter discount for him. Plaintffs'case is that Venaitirtan Chetty acted in taking the bond, and.afterwards in discounting the notes, solely as the agent of theplaintiffs’ firm. Defendant, on the other hand, contends ‘thatVenaitirtan acted on his own personal account merely, and that.defendant dealt with him on that footing, and defendant denies.ail liability to plaintiffs.
Defendant also in his answer attempted to raise the point .thatthe proctor who instituted the proceedings as proctor for the partyplaintiffs had no authority to represent plaintiffs. That proctor'sproxy was signed not by the four plaintiffs, but by one Ps.Le. Muttiah Chetty as their attorney. Defendant, therefore,had a perfect right, as soon as he was served with process in the.action, to require proof of Muttiah's authority. That was not amatter for pleading. Defendant might have raised that point bymoving to have the libel taken off toe file. The District Judge,however, at the trial satisfied himself that Muttiah had authority.to sign the proxy on behalf of plaintiffs, and -I see no reasonto differ from the District Judge. Nor do I see any reasonto disapprove of the learned District Judge’s finding thatVenaitirtan acted in this matter throutghout as the agent ofplaintiffs’ firm of Pe.'Le. On the contrary, I have no doubt what-ever .that- Venaitirtan, who is dead, and whose own patronymicinitials were M.u. A. Ru., acted in the matter throughout, and
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that to defendant’s knowledge, as the agent of Pe. Le. It is inmy opinion satisfactorily proved that the firm of Pe. Le., afterTamil Chetty fashion, appointed Mu. A. Muttiah as their agent orattorney in Colombo, and that Muttiah, after the same fashion,appointed Venaitirtan, – singing himself duly in the instrument ofappointment Pe. Le. IJ^pttiah. I agree with the learned DistrictJudge tihat the words “ executors and administrators ” in thebond sued on are a mere notary’s blunder.
The learned District Judge also discredits the attempteddefence of payment, and I am very far from being disposed todiffer on that point either. I think that this appeal should bedismissed with costs.
I agiee with the rest of the Court that this appeal shouldbe dismissed. The question raised by the defendant is whetheror no.t the bond sued on by the plaintiffs was a bond in theirown favour. The plaintiff are members of a Chetty firm tradingin Ceylon under the style ‘ Pe. Le., ” which are two letters ofthe Tamil alphabet. Those natives of the south coast of Indiawho are usually known as Natukotta Chetties have been tradingin Ceylon for a considerable .time. The principals seldom ornever come to the Island, and all their business transactionshere were carried on through agents. The plaintiffs in this caseseem to be persons of this character. These Chetty firms weredescribed by the names of the individual partners, to which wereprefixed the initial letters of the firm, as in this case “ Pe. Le. ”These foreign principals, till up to a very late period, seldom ornever granted powers of attorney to their Ceylon agents. But,probably finding the inconvenience to which their agents were putwhen they were obliged to appear in Courts in this Island, theyseem to have adopted .the plan of giving their Ceylon agentswritten authorities. The agents, when they were obliged to signauy document for .their principals, always signed their own names,to which they prefixed the initial letters of the firm on whosebehalf .they acted; but when they signed on their own account,they signed .their own names and prefixed thereto the initials oftheir own patronymics. This is a well-known practice among theChetty traders of this Islanld, and has more than once beenrecognized by .this Court (see 42,165, D.C., Colombo, decided in1866. and referred to in 3 S. C. C. 137). At .the date of this bondthe plaintiffs’ Ceylon agent was one Venaitirtan Chetty. Whetherhe had any patronymic or not, the evidence does not show. Thebond is in favour of Pe. Le. Venaitirtan Chetty, which means a
bond in favour of the plaintiffs represented by Venaitirtan Chetty.Upon tbe evidence I have no hesitation in coming to the conclu-sion that the money paid to the defendant was not Venaitirtan'emoney, but the money of the plaintiffs, and the conclusion offact arrived at by the learned Judge is correct. I think theappellant should pay the costs in both Courts.
PETTACHI CHETTY v. MOHAMADO YUSOOF