RANTEBE v. PEIRIS SILVA

068-NLR-NLR-V-34-RANTEBE-v.-PEIRIS-SILVA.pdf


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DALTON J.—Rantebe v. Peiris Silva.
1932Present: Dalton and Jayewardene JJ.
RANTEBE v. PEIRIS SILVA.
232—D. C. Kandy, 37,447.
Prescription—Money advanced for purchase of tea leaf—Book debt—OrdinanceNo. 22 of 1871, s. 9.
Where the plaintiff entered into an agreement with the defendantfor the purchase of tea in the course of which he advanced money to himand an account of the transaction was entered in the plaintiff’s books.
Held, that a debt due in respect of the transaction was not a book debtwithin the meaning of section 9 of the Prescription Ordinance and thatan action for recovery of the money advanced was prescribed in threeyears.
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HE plaintiff sued the defendant for the recovery of a sum ofRs. 784.14, alleged to be balance due of money advanced to
defendant for the supply of green tea leaf. The District Judge dismissedthe action on the ground that the sum claimed was a book debt and wasprescribed in one year under section 9 of the Prescription Ordinance.
Garvin, for plaintiff, appellant.—This is an action for money lent andadvanced. The books are merely evidence of such advances. Allentries in books do not constitute book debts, see Municipal Council,Kandy v. Abeysekere The words' “ book debt ” in Ordinance No. 22of 1871 is used in a restricted sense. The fact that defendant-respondentwas credited with the value of tea leaf supplied can have no effect on theoriginal contract.
Navaratnam, for defendant, respondent.—From the evidence both oraland documentary, it is clear that (1) the parties had entered into a conrtract of purchase and sale of green tea leaf, (2) the details of the trans-action are duly recorded in books, and (3) advances made are set offagainst the price. These three elements are sufficient to bring thetransaction within the meaning of book debts. The cases of Pate v. Mackaand The Municipal Council, Kandy v. Abeysekere (supra) support thesesubmissions.
July 29, 1932. Dalton J.—
This appeal raises a question under the Prescription of Actions Ordi-nance, 1871. The plaintiff sued the defendant for a sum of Rs. 798.14,alleged to be balance due of money advanced to defendant for the supply1 31 N. L. R. 866.= 26 N. L. R. 321.
DALTON J.—Rantebe v. Peiris- Silva.
253
of green tea leaf to the plaintiff. The trial Judge held that the sum wasdue to plaintiff, but he dismissed plaintiff’s action on the ground that thesum claimed was a book debt and prescribed in one year, under section 9of the Ordinance. Plaintiff appeals, it being urged on his behalf .thatthe transaction falls under section .8 of. the Ordinance, under which th^period of prescription is three years.
The evidence shows that plaintiff owns a tea estate and also purchasedgreen tea leaf from outsiders which was manufactured in his factory.For a period of years he had been in the habit of making advances todefendant for the purpose of purchasing tea leaf for delivery at thefactory. He apparently dealt with a number of other persons in thesame way, but the arrangement or agreement between the parties was hotput in writing. Plaintiff of course kept books, day book and ledger,in connection with all these transactions, which were produced, whilstdefendant had a pass book in which entries of tea delivered at the factorywere made at the time of delivery. The pass book was not produced,defendant alleging that it was handed over by him to plaintiff in 1924when the alleged accounts were settled in May, 1924,. between the parties.The trial Judge rejects defendant’s evidence on this point, holding thatthe entries in plaintiff’s books subsequent to May, 1924, were genuine.The last entry of a cash advance is December 31, 1927, and this actionwas launched on January 9> 1929.
Whilst accepting plaintiff’s version of the facts alleged, the learnedJudge has, however, come to the. conclusion that the action is in respectof a book debt, and the, claim is prescribed in one year. From thatdecision plaintiff appeals. It is urged on his behalf that the action fallsunder section 8 of the Prescription of Actions Ordinance, the period therebeing three years.„
In my opinion, the appeal must succeed. The facts show that. in termsof an agreement which was not reduced to writing plaintiff frpm time totime advanced sums of money to defendant to enable the latter to pur-chase tea for the plaintiff. This is a matter which * seems to me to fallwithin section 8 of the Ordinance.
The question of what is a “ book debt ” a$ the term is used in theOrdinance has been before the Court before, and is not an easy questionto decide. The term appears to have been first used, so far as I canascertain, in Regulation No. 13 of 1822, section 7 of that Regulation beingwith one slight addition, in practically the same terms as section 7 ofOrdinance No. 22 of 1871. ^Regulation No. 13 of 1922 was repealed by Ordi-nance No. 8 of 1834 which was repealed by Ordinance No. 22 of 1871. Inall these thrdp enactments it is to be noted that the term “ book debt ” iscoupled with the term “ shop bilL” In its general sense, the term “ bookdebt ” is very much wider than the term “ shop bill,” but having regard tothe provisions of the previous sections and also to the wording of section9, I am inclined to think that here the principle noscitur a sociis applies.If that is so, the meaning of the term must be limited by reference to theprevious specific word which has been coupled with the term “ bookdebt. ” I appreciate the fact that this doctrine must be applied withcaution, since it itnplies a departure from the natural meaning of the
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DALTON J.—Rantebe v. Peiris Silva.
words, but it is clear from previous judgments of this Court that the termas used in section 9 has not been given its natural and general meaning.
The 'Case of Mahalingam & Co. v. Muttiah Pillaix was an action forgoods sold, and delivered. Goods had been sold and money lent to a thirdperson oiv ^account of the defendant. The items were all entered in theaccounts, to which the term “ book debts ” might in its natural senseapply, but the Court (Bertram C.J. and Ennis J.) held that, whereas theprice of goods sold and delivered more than a year prior to the actioncould not be recovered, different considerations applied to sums enteredin the account as money lent and advanced, the prescriptive period forwhich is three years under section 8 of the Ordinance. The learnedJudges were of opinion that the argument that these items could beregarded as book debts under section 9 was not sound. The reasons forthat conclusion are not given, but in the result the term “ book debt ”must clearly in their opinion have a much narrower meaning in the sectionthan is usually given to it.
In Municipal Council, Kandy v. Abeysekere" it was also pointed outthat the term “ book debt ” as used in section 9 could not be given theusual Wide meaning of the words. There the Council carried on thebusiness of selling electric current, fittings, and lamps, and also of hiringout lamps for illumination. Books were kept for the purpose of thebusiness in which the accounts of customers were kept. The amountsued for there from one of the customers was held to be a book debtwithin the meaning of section 9. In Pate et al. v. Mack,3 it was held byme that a sum claimed by the plaintiff, who carried On the business ofveterinarians and shoeing smiths, for medicine, diet, kennelling and otherservices also came within the term “ book debt, ” as used in the section,although this case was more difficult to decide. I also expressed theopinion there that from the context the kind of “ book debt ” contemplat-ed was one that had arisen in connection with a shop or similar tradeor business.
In the case under appeal before us, so far as the evidence goes, theplaintiff was a tea estate proprietor, who, in addition to growing andmanufacturing his own tea, entered into agreements with others for thepurchase of tea, in the course of which transactions he made advances forsuch purchases. Although the transactions and accounts were enteredin books, I am unable to agree that the trial Judge was correct in holdingthat debts shown by the books to be due in respect of such transactionswere book debts within the meaning of section 9 of the PrescriptionOrdinance. The transaction falls under section 8 and the period ofprescription is three years.-
In the event of this Court holding that the trial Judge was wrong onthis point, it was urged that the item entered under date January 16,1926, was wrongly entered and it should have been entered in November,
1925.
1 2 Times of Ceylon L. R. 129.
3 28 N. L. R. 321. ■
2 31'N. L. R.- 366.
DALTON J.—King v. Logus.
255
The trial Judge has found 'that the books are correct and after anexamination of them in respect of this and similar transactions I have noreason to disagree with his conclusion.
The appeal must therefore be allowed, the decree entered in the lowerCourt being set aside and judgment entered for the sum of Rs. 798.14found to be due to the plaintiff, who will be entitled to costs in bothCourts.
Jayewardene A.J.—I agree.
Appeal alloweda