074-NLR-NLR-V-58-R.-M.-APPUHAMY-Appellant-and-B.D.-MENDIS-Respondent.pdf
1956Present: T. S. Fernando, J.
lv. M. APFUHAMY, Appellant, and B. I>. MEXD IS, RespondentS. C. J9S—C. R. Badulla-JIalduni ulla, 3,230
Public Servants [Liabilities) Ordinance [Cap. SS)—Section 2 {/) (a)—Protection,of Ordinance not available against actions based on unjustified enrichmentor for recovery of money paid on a consideration which has failed..
By an informal writing tho defendant, who was a public servant, had agreedto transfer certain immovable property to tho plaintiff. Tho documentcontained an acknowledgment of the receipt of a sum of JRs. 250 “ as advancethis day on that account ”, When tho defendant subsequently failed totransfer the property as agreed upon; tho plaintiff instituted tho present actionfor tho recovery of tho sum of Rs. 250 paid in advance.
Held, that tho action did not fall within tho class of actions described in'section 2 (1) (a) of tho Public Scrvnnts (Liabilities) Ordinance.
A
xiPPEAL from a judgment of the Court of Requests, Badulla-Haldumulla.
T. B. D i ssa n ay a he, for the execution-purchaser appellant.
G. P. J. Kurnkulasuriya, with E. L. P. JSIendis, for tlie defendantrespondent.
Cur. adv. vult.
December 21, 1D5G. T. >S. Fbbxaxdo, J.—
In execution of a decree entered against the defendant-respondentordering him to pa}' to the plaintiff a sum of Its. 250 a land belonging tothe defendant was seized and put up for sale by the Fiscal, and at thesale it was purchased by the present appellant. The defendant appliedto court to set aside the sale on t-lio ground (i) of certain irregularitiesalleged by him in the conduct of the sale and (ii) that he was a publicservant entitled to plead in this case the protection of the Public Servants(Inabilities) Ordinance (Cap. SS). The issues in regard to the allegedirregularities have not been answered by the learned Commissionerof Requests as he treated another issue (issue 0) as to whether the causeof action upon which the defendant was sued was barred by the provi-sions. of section 2 of the Public Servants (Liabilities) Ordinance as apreliminary issue an answer to which in favour of the defendant wasconclusive in the case. ■
The Commissioner has found that (i) the defendant was a publicservant who came within the class of public servants entitled to pleadthe Ordinance, and (ii) it is open to the defendant to plead the benefitof tho Ordinance at the stage of execution notwithstanding that judg-ment has been entered against him, and learned counsel for the appellantdoes nob canvass these findings. He has however strenuously contendedthat these findings are of no avail to the defendant in this case as thelatter must show further that the action upon which he has been suedis an action of the kind described in section 2 (1) of the Ordinance. Bothcounsel before me were agreed that the action filed against the defendant-does not come within the class of actions described in section 2 (1) (b)or 2 (I) (c). The present appeal therefore hinges upon the questionwhether it is an action 'upon any promise, express or implied, to repay■money paid or advanced to him and thus falling within the class of actionsdescribed in section 2 (1) («).
It is therefore necessary to consider the real nature of the action inwhich the defendant was sued by the plaintiff. By an informal writingPI the defendant had agreed to transfer to the plaintiff certain premisessituated at Bandarawcla on the plaintiff paying to him a sum of Rs. 4,250Before a date specified in the writing. PI further contained an acknow-ledgment of the receipt of a sum of Rs. 250 as advance this day onthat account The plaintiff alleged in his plaint that the defendanthad failed to transfer the property as agreed upon and liad failed and
neglected to pay back the sum of Its. 250 paid as advance. Ho thereforeclaimed that a cause of action had arisen to him to sue the defendantfor the recovery of the said sum of Its. 250. The writing PI not beingnotarially attested could not havo been sued upon in respect of the promiseto transfer tho immovable property, but was available as evidence ofthe receipt by the defendant of Its. 250 which sum was no doubt paidby way of earnest money. Indeed, the receipt- of this sum was admittedby tlio defendant in his answer. On the day fixed for trial judgmentwas ontcrcd against tho defendant in terms cf section S23 (2) of thoCivil Procedure Code on default of his appearance, and I shall thereforeproceed to consider the question now before me on the assumptionthat the assertion in the plaint that it was the defendant who failedto carry out the terms of the agreement embodied in PI by transferringtho property is established. As it was the defendant who failed tocomplete the transaction of the sale of the property, the plaintiff becameentitled in law to a refund of the money advanced by him on the informalagreement. This was a case where the action for recovery of the moneylay either on the basis of an unjustified enrichment of the defendantor on the principle that money paid on a consideration which has failedmay be recovered as money had and received.
If the real nature of the action be as stated by mo above, can it besaid that it fell within the class of actions described in section 2 (1) (a)of the Ordinance ? learned Counsel for the defendant conceded whatis, no doubt, obvious that the action was not based upon any expresspromise, but he argued that, there was an implied promise by thedefendant to repay the sum of Rs. 250 paid to him by the plaintiff asan advance on the consideration which had been agreed upon at Rs. 4,250.
I am of opinion that the actions described in section 2 (1) («) are princi-pally actions for the recovery of sums paid out as loans or on transact ionsin the nature of loans and that they do not in the context embrace actionsbased on the quasi-contractaial obligations referred to by me in thoparagraph above.
As Dalton J. said in Sanmrasioulera v. Perera1, t: the limits within whichpublic servants are protected are very carefully prescribed by theOrdinance ”, and Courts should be watchful to grant the protectionof the Ordinance only in respect of actions which fall strictly withinthe terms of section 2.
I am of opinion that the answer to issue 9 should have been that thocause of action sued upon in this case did not fall within tho exemptedclasses specified in section 2 (1) (a) of the Ordinance. I would thereforeset aside the order made by the learned Commissioner on Sth December*1955 and remit tho case to the Court of Requests for the inquiry to becontinued on the other issues that were framed. Tho appellant will beentitled to the costs of this appeal and of the proceedings so far held intho Court of Requests on the application to set aside the sale.
Appeal allowed.
1 (7930) 31 JV. L. li. at 295.