050-SLLR-SLLR-1998-V-3-RAJAPAKSA-v.-GURUSWAMY.pdf
346
Sri Lanka Law Reports
11998] 3 Sri L.R.
RAJAPAKSA
v.
GURUSWAMY
SUPREME COURTAMERASINGHE, J.tDHEERARATNE, J. ANDGUNASEKERA, J.
S.C. APPEAL NO. 9/97
A. NO. 544/88 (F)
C. COLOMBO NO. 6192 REMAY 14, 1998.
JUNE 5 AND 15, 1998.
Rent and ejectment – Rent Act, No. 7 of 1972 – S. 22 (3) (c) of the Act – Tenderof arrears of rent – Dispatch of money by postal telegraphic money order.
The date fixed in the summons for appearance of the tenant in court was 30thApril, 1985. On 29th April, 1985, the defendant forwarded to the plaintiff throughthe Kotte Post Office by a telegraphic money order the sum due as rent. Themoney order was received by the landlord only on the 2nd May. 1985. It wasnot the case that the tenant had on earlier occasions tendered rent to the landlordby money order.
Held:
The act of mailing a money order does not amount to “tender" or “payment"until actual receipt of letter by the addressee, unless he has consentedto make the post office his agent of the sender.
Accordingly, the tenant had failed to tender to the landlord arrears of rentin terms of the Act.
Cases referred to:
Razik v. Esufally (1957) 58 NLR 469 at 471.
Medonza v. Silva (1984) CA (1985) 1 Sri LR 44 at 52.
Jayakody v. Lilian Perera (1993) 2 Sri LR 74.
Thomas v. Evans – 1808 10 East; 101; 103 ER 714.
. Alexander v. Brown – 1824 I C and P 228 N.P.
Palmer v. Rhodes – 1888 5 H.C.G. 56, 61.
Gunby v. Ingram – 57 Wash 97, 36 R.L.A. P 232.
9.Kerr v. United States – 108F 2d 585, 586 71 App. DC 222.
APPEAL from the judgment of the Court of Appeal.
sc
Rajapaksa v. Guruswamy (Dheeraratne, J.)
347
Rohan Sahabandu with Ms Dilhani Perera for plaintiff-appellant.T. B. Dillimuni with Tissa Bandara for defendant-respondent.
Cur. adv. vult.
July 3. 1998.
DHEERARATNE, J.
The only question which arises in this appeal is whether the defendant-respondent tenant (the tenant) has, in the eyes of the law, compliedwith the provisions of subsection 22 (3) (c) of the Rent Act, No. 7of 1972, in duly tendering arrears of rent to the plaintiff-appellant (thelandlord). The material parts of that subsection read as follows:
The landlord of any premises referred to in subsection (1)of subsection (2) shall not be entitled … to proceed with, anyaction or proceedings for the ejectment of the tenant of suchpremises on the ground that the rent of such premises has beenin arrear . . . after it has become due.
(c) if the tenant has, on or before the date fixed in suchsummons as is served on him, as the date on which he shall appearin court in respect of such action or proceedings, tendered to thelandlord all arrears of rent.
The date fixed in the summons for appearance of the tenant incourt was admittedly 30th April, 1985. A sum of Rs. 420 representingarrears of rent was handed over on the 29th April, 1985, by thedefendant to the Kotte post office to be forwarded to the landlord byway of a telegraphic money order. The money order was receivedby the landlord only on the 2nd of May, 1985.
"Tender" is clearly distinguishable from and therefore cannot meaneither "offer" or "pay". "Offer" would mean mere readiness to pay and"pay" would mean the tender on the part of the tenderer followedby acceptance on the part of the creditor. To constitute tender, thereadiness to pay must be accompanied by production of the moneythat is offered in satisfaction of the debt. See Razik v. Esufally'1; at471, Medonza v. Siivd2) at 52. It may be mentioned here that thetender should be made to the landlord (or his agent) and it has beenauthoritatively decided that payment of arrears to court is not sufficientcompliance with subsections 22 (3) 22 (4); Jayakody v. Lilian PerersF.
348
Sri Lanka Law Reports
[1998] 3 Sri LR.
It is not the case that the tenant had on earlier occasions tenderedrent to the landlord by money order; if he had done so in the past,different considerations may have applied. Wessels (The Law ofContract in South Africa, vol 11, 2nd edition at 649 and 650) says:“If the tender is one of money it must be made in lawful currency,and must be actually produced or the production waived by the creditor{Thomas v. Evans,(A) Alexander v. Brown,<5).)
If a tender is made by cheque, the creditor is entitled to refuseit and insist on the money, but custom of paying large sums by chequeis apparently judicially recognised, and if the tender isnot refused on the ground that it is by cheque, it will be regardedas avalid tender {Palmer v. Rhodes;I6). See American case of Gunbyv. Ingram t7))“-
There is no reason to reject the transfer of money by money order,as a mode of lawful tender in modern times if the landlord hasaccepted such a mode of tender before. In such an event it couldhave been even contended in this case that the landlord hadconsented to make the post office his agent to receive payment.
Our own investigations on this aspect of the matter has led usto the case of Kerr v. United Stated where it was held that the actof mailing a money order does not amount to “tender" or “payment"until actual receipt of letter by addressee, unless he has consentedto make the post office his agent to receive payment, since otherwisethe post office is the agent of the sender.
For the above reasons I hold that the tenant has failed to tenderto the landlord arrears of rent in terms of the Act. The appeal is allowedand the judgment of the Court of Appeal and the District Court areset aside. Enter judgment in favour of the appellant as prayed forin the plaint with costs of the courts below and costs of this courtfixed at Rs. 5,000. However I direct that writ of ejectment shall notbe issued till 30th September, 1998; the appellant will be entitled toobtain writ of ejectment thereafter without notice to the respondent.
AMERASINGHE, J. – I agree.
GUNASEKERA, J. – I agree.
Appeal allowed.