S. P. A. ANNAMALAY CHETTY v. THORNHILL

047-NLR-NLR-V-29-S.-P.-A.-ANNAMALAY-CHETTY-v.-THORNHILL.pdf


( 225 )
Present: Schneider J. and Maartensz A.j.
*S. P. A. ANNAMALAY CHETTY r. THORNHILL.
57—D. C. Ratnapura, 4,122.
Registration of business names—Chetty vilasam—Failure ■ to register—Right to purge default—Caveat—Registrable . instrument-ordinance No. 6 of 1918, 8. 3.
Where Annamalay Chetty, the son of Supramaniam ' Chettytraded under the designation of S. P. A. Annamalay Chetty.
Held, that he traded under a vilasam .which did not consist ofhis true full names without addition within the meaning * of section2 (6) of the Registration of Business Names. Ordinance and that thevilasam required registration under the Ordinance..
A person who, without registering his business names, institutesan action to enforce his rights on a contract, entered into whilehe was in default, is not entitled to purge his default during thependency of the action.
Mohideen <£ Co. t>. Meero Saibo et at.1 followed.
A person who lodges a caveat against the registration of aninstrument affecting land,' in winch he has no registrable interest; isliable in damages without proof of malice.
T
HIS was an action brought by the plaintiff,*: for ithe recoveryof a sum ,of Rs. 54,577.46 for rioe and .cash supplied to the
•defendant. The defendant, while denying the correctness of theamount, claimed in reconvention a sum of Rs. 75,000 as damagesbyreason of the plaintiff having wrongfully and maliciouslyentered in the land register of the District of Itatnapura a caveatforbidding the registration of any deed or other instrument affectingsixteen allotments of land belonging to the defendant. At thetrial the defendant further contended that the plaintiff could notenforce the contract as he earned on business under a name whichrequired registration under section 2 of the Business NamesRegistration Ordinance, No. 6 of 1918.
The learned District Judge held that (1) the plaintiff •. hadestablished the liability of the . defendant to the sum claimed by.him, (2) that the plaintiff had carried on business under a namethat should have been registered * angl (8) that the defendant onhis claim in reconvention was entitled to recover, a sum ofRs. 5,000 damages. He further ordered the plaintiff to furnishto the Registrar within fourteen days the necessary particulars, forthe registration of his business under section 4 of the Ordinance anddirected that on compliance with the order-he would be entitled,to enforce Bis decree.
> 22N.L.R.268.s
1927,
sTKa.
AnnamalayChetty v.Thornhill
( 226 )
A. E. Keuneman, for defendant, appellant.—The plaintiff is aChetty and carries on business under a “ vilasam, 99 and the firstobjection to the maintainability of the present action is that thebusiness is. not registered as required by Ordinance No. 6 of 1916.
The true name of the Chetty is Subramaniam Chetty AnnamalayChetty. The designation he chooses to use is S. P. A; AnnamalayChetty. This is not his “ true full name ” and therefore there isan obligation to register, vide section 2 (6) and section 20 of theOrdinance. The construction placed is that 8. P. is an abbreviationfor Supramaniam. Even if this is conceded the “ A ” in " S.P.A. "has no significance, and therefore S. P. A. is a vilasam requiringregistration. But while the English Statute1 on which ourOrdinance is based contemplates the use of recognized abbrevi-ation, e.g., Ed. for Edward, Thos. for Thomas Ac., our Ordinancehas deliberately made no such provision.
The usual meaning given to S. P. A. Annamalay Chetty would beAnnamalay Chetty attorney of the business S. P. A. The fact thatthe business is the concern of one individual does not matter. Ifthe name is not the true full name or initials, then the businessrequires registration.
The learned Judge has given judgment in favour of the Chettyon the condition that he registers his business within a fortnight®The Chetty has done so. The Judge has no right to make suchan order. The criminal liability under section 8 of the Ordinanceis one for which a ‘ 'reasonable excuse M would suffice. In section9, which deals with the civil aspect, no such excuse is allowed.The Court can even mero motu take exception to plaintiff’sbringingthe action forwant ofregistration. The proper course
for the plaintiff was to have withdrawn the action under section406 of the Code with' liberty to institute a fresh action.
Counsel cited Jamal Maideen v. Meera Saibo2 and KaruppenChetty v. Harrisons & Crosfield, Ltd.2
F. A.HaylcytK.C.(with N.E. Weerasuriya), for plaintiff,
respondent.—The true scope of the inquiry is “ what is the truefull name *?? The earlier cases do not deal with that aspect butmerely with the use of the vilasam. Now the Chetty has givenevidence, and he states that his true full name is S. P. A. AnnamalayChetty.Now inthisinstanceS. P. A. really denotes an
abbreviation. There is no analogy to (it in the practice of Europeannations as the custom is peculiar to the Chetties. “ S. P. A. ** simplystands for “ Soon a Pana Ana. ** The Chetty, has been known frominfancy as S. P. A. Annamalay Chetty, and that is his true name.
CitedHal vol.XXI.at pages349-351 and King v. Billings-
worth.4
1 5 A 7 Ota. F. e* 58.*22N*L. R. 2$8.
9 24 N. L. R. 317.
4 3 Maul df Set. 250, at p. 256*
( 227 )
If appellant’s contention is right no Chetty can ever trade **27.without registering his business.• S. P. A.
It is not denied that the amount is justly due, and a technicalitylike the present objection ought not to prevail to defeat a just Thornhillclaim. 'Besides the Chetty has acted on advice and he registeredhis former business when he had a partner, so that it is not a casewhere he has deliberately evaded the provisions of the law.
Dealing with the Ordinance as a whole the following propositionsmay be laid down:—
The object of the Ordinance was to prevent persons trading
under a disguise, e.g., alien enemies.
The true full name in section 2 must be construed to include
the initials and name habitually used (and in the case of
Chetties the initials are the vilasam).
In any event, even if the " A M is an addition then it ought to beconstrued as an immaterial alteration, vide Queen v. Bradley.1
Withregard tothe effect of section9,theimportantpoint is
what ismeant by“ default. ” The real issueis not onebetween
two parties but between the Registrar and the plaintiff. Theword “ default " in this section is not equivalent to “ not. ” Theplaintiff in the present case has not been in default as he has madeevery effort to get information but failed to register because hewas told it was not necessary.
Also cited Prizer v. Lefkuwitz** and Maxwell on Statutes*
As regards the claim for damages arising from the caveat proof ofmalice is essential, Croos v. Raman Chetty.4
A. E.Keuneman, in reply.—Maliceisnotnecessary.Caveat
can onlybe lodgedby a party interestedinthe land. Theplaintiff,
having merely a money decree against the defendant, is not sucha party. And in such a case malice is not an ingredient of theclaim (S. C. Minutes of February 5t 1925—191, D. C. Negombo,
16,048).
October 28, 1927. Schneider J.—
At the close of the argument of this appeal my brother Maartenszand I were agreed that the plaintiff’s action failed by reason ofthe provisions of “ The Registration of Business Names Ordinance,
No. 6 of 1918,” and that the defendant had failed to prove thathe had sustained any damage whatever, and we were also' agreedas to the order which should be made regarding costs. Beforewriting this judgment I had the advantage of reading the judgmenthe has written. I entirely agree with it with regard to the factsand the law. I need not therefore discuss the evidence at any
1 30 L. J. Q. B. ISO.^ (Sth ed.) 14S, 402, 50 L
* (1912) 2 K. B. 235.* 5 C. L. R. 104.
1927.
^OHMEEDKR
J.
S. P.A.AnnamalayChetty v.Thornhill
( 228 )
length, but in view of certain arguments addressed to us I proposeto make a few observations. The important fact to be ascertained'is whether the plaintiff carried on business at the times ; materialto this action under a business name which did not “ consistof his true full names without any addition ” (section- 2 (6) ofNo. 6 of 1918). What was the name under which the plaintiff-carried on business during those times ? I agree in the finding ofthe District Judge and of my brother * Maartensz that it consisted of
the Tamil letters Suna Pana Ana. The fact that- in bills renderedto the defendant, or in a formal document) such as P 2, relating tohis business he described himself- as- S. P. A. Annamalay Chettydoes not affect that finding. The* weight of the evidence in thiscase is greatly on the side of that* finding. Not only so, but theknowledge derived by my' bfother- on the Bench of the DistrictCourt for many years, and indeed by any occupant of this Benchfrom the numerous cases in our Courts connected in one way oranother with the Nattu Kottai Chetty traders* custom regardingbusiness names, called by them “vilasams,” and the peculiarforms of signature adopted to denote agency " enables him and me .to appreciate the true value, of the evidence produced iti this case.
1 have no hesitation in preferring the evidence of Mr.’ Kandiahto the evidence of Mr. Beven wherever there is a conflict in theirevidence. Mr. Kandiah’s experience is over a wider field, and hisknowledge is derived, not only from what he has seen, heard, orobserved in Ceylon, but also in India, the home of the Chettytrader. He is a Tamil gentleman himself and familiar with the Tamillanguage, both spoken and written. All these are facts whichinvest his evidence with the greater value. He says that 44 Chettiesin business are known by their 4 vilasam * and they always carry onbusiness under a vilasam. ” He gave the true explanation, in -myopinion, when the document marked P 57 was shown to him. Itgives the name as S. P. A. Annamalay Chetty and a telegraphicaddress and other details in English. He said 44 a full name – likethat printed on this document is not usually used by money-lending Chetties, but now some of them do, to 'have a- fixed namefor those, who do not understand, their customs, to have a fixedname to write to or to make out cheques in their names. ” It is awell-known custom obtaining not only among the Nattu KottaiChetties but among other natives of .Southern India and amongthe Moors, of this Island to form an individual's name by prefixingthe f&ther*6 name to the personal name of tjie individual. Accord-ing to that custom, the. plaintiff's father's name being Suppra-xnaniam, and the* plaintiff’s own name Annamalay, his true full names,wotild be Suppramaniain Annamalay. The word 44 Chetty *’ is only*an honorific—rfndre correctly it is 44 Chettiar. " TH‘e Nattu KottaiChetty custom (qfl a V vilasam " has received judicial recognition
( 229 )
as consisting .of a combination of letters. Whether those lettersrepresent the initial letters of ‘ the person’s true full names orother names, they are a “ vilasam,” which is a “ business ” namewithin the meaning of the Ordinance No. 6 of 1918, section 20,which does not consist of the person’s true full names (section 2).Accordingly, even if the ” vilasam ” S. P. A. be regarded asrepresenting the initials of the plaintiff’s true name, registration isrequired of the individual carrying on business under that ** vilasam.”It appears to me inconsistent with my knowledge derived fromnumerous cases in the Courts, and contrary to the entire weightof the evidence in this case to accept the contention that, althoughthe initial “ A ” stands for Annamalay, the plaintiff’s personalname, and S. P. for the plaintiff’s father’s name, that the combina-tion S. P. A. must be followed once again by the plaintiff’s name'in full to get the plaintiff’s full names. On this point I will referto but one document of a very formal character produced by . theplaintiff. It is the power of attorney marked P 2 executed by theplaintiff appointing his own son, Suppramaniam, and one Eawtheras his attorneys in regard to the business which is connected with thisvery case. The document was produced to prove that the plaintiff’strtue full name was Suna Pana Ana Annamalay Chettv, and alsoto prove that the custom^ to take the initial letters of the father’sname and suffix to them the initial letters or letters of the son’s ownname and then add, after that combination, the son’s name in full.The document does support the statement that the plaintiff calledhimself S. P. A. Annamalay Chetty in the document. But on theother hand it contradicts the evidence as to the manner in whicha Chetty forms his full name according to custom as deposed toby the plaintiff and his witnesses. According to them the plaintiff’sson’s full name would consist, of the initial letter of' his .father’sname, that is, Ana. for Annamalay, followed by Suna for Suppra-"maniam Chetty, and the Suppramaniam Chetty suffixed to thoseinitials, that is, A. S. Suppramaniam Chetty, but the son’s nameis given in the document as Suna Pana Ana Suppramaniam Chetty,that i.s with the same initials as in his father’s name, The explana-tion of the forms of these names is to be found in yvhat I havetouched upon above, and which I will now put in a slightly differentform.
A Nattu Kottai Chetty is bom into business, and for business,alone. At birth he acquires an interest in his father’s businessas a member of a j6int Hindu family. At an early age he takes anactive p£rt in the old business, and, often, also when quite young,as for instance as the plaintiff did at the age of 20, starts a businessof his own. All businesses are. carried on‘ under ** vilasams.”The true meaning of the custom is that “ vilasams ” are notindividuals so much as designations of businesses. Hence in the
1927.
Schneider:
Jv
S.P.A.AnnamalayChetty v,ThomJiiiS
( 230 )
1927.
Schneider
J.
S. P.A.AnnamalayChetty v.Thornhill
document both father and son called themselves by their ownpersonal names! the letters S. P. A. prefixed to both names indicatethat both of them are of the business carried on under the “ vilasam ”denoted by those letters. In short, a Chetty has for all practicalpurposes no existence apart from business. Even in his privatecorrespondence his signature would not be his personal name,but only the “ vilasam ” or initial letters of the business if onethere be. The true test as to what is the business name of a Chettytrader is the form of signature which his attorney adopts in formaldocuments. The custom is universally recognized that an agentdenotes his signature as that of an agent by prefixing the “ vilasam “of his principal to hi6 own personal name. Plaintiff’s own attorneysays that the plaintiff's “vilasam ” was S. P. A., and that whensigning as plaintiff's attorney he signed S. P. A. and added hisown personal name after those letters. To my mind that is almostconclusive evidence that plaintiff's “ business name ” was his“ vilasam M S. P. A.
I agree therefore with the finding that the plaintiff havingbeen an “ individual having a place of business in the Colonyand carrying on business under a business name or ‘ vilasamwhich did not consist of his true full name " was required by theOrdinance to be registered (section 2). He was therefore aperson required to furnish a statement of particulars under theprovisions of .sections 4 and 9 of the Ordinance. I agree, for thereasons given by my brother, that he was in default within themeaning of section 9, and that under the provisions of that sectionhe cannot maintain this action, which was not only commenced,but also decided, while he was in default. The defendant’s appealsucceeds to that extent.
I • agree with my brother that the defendant's appeal for anenhancement of the sum of Rs. 5,000 awarded to him as damagesshould be dismissed both for the reasons given by my brotherand by the learned District Judge.
I also agree with the view expressed in my brother’s judgmentin regard to the plaintiff’s objection to that part of the decreeawarding the sum of Rs. 5,000 as damages to the defendant. Theobjection succeeds partially. It is correct, as the plaintiff contends,that the defendant has failed to prove that he suffered any actualdamage. The damages he speaks to as having been sustainedby him are either too remote or there is no reliable proof of hishaving actually sustained them. In the circumstances in whichthe caveat was lodged, my opinion is that the plaintiff had no legaljustification for entering the caveat, and that the defendant isentitled to recover damages without any proof of malice. I wouldadopt the exposition of the law in S. C. No. 191—D. C. Negombo
( 231 )
No. 16,04s,1 mentioned in my brother's judgment. The plaintiffis in the position of a person complaining of an injuria sine damno.I would award him Bs. 5 as damages. I agree with the orderas regards costs contained in my brother’s judgment.
Maaktensz A.J.—
This was an action for the recovery of a sum of Bs. 54,577.46 forrice and cash supplied to the defendant as per particulars of accountfiled with the plaint.
The defendant filed answer denying the correctness of the accountand claimed in reconvention a sum of Bs. 75,000 as damagessustained by him by reason of the plaintiff having on June 20, 1924,“ wrongfully and maliciously and without reasonable and probablecause, and without any manner of right or title to do so, caused tobe entered in the land register of the District of Ratnapura acaveat forbidding the registration of any deed or other instrumentaffecting sixteen allotments of land belonging to the defendant andsituated in the village Denawaka Pathakada of the aggregate extentof six hundred and six acres and seventeen perches/*
At the trial the defendant pleaded further that the plaintiff couldnot enforce the contract as he carried on business under a namewhich was not his true full names without addition and had notregistered the name as required by the provisions of the Registrationof Business Names Ordinance, No. 6 of 1918.
The learned District Judge held (1) that the liability of thedefendant to the plaintiff in the sum claimed had been established,
that the plaintiff was not carrying on business under his truefull names without addition and that the name should have beenregistered under the provisions of the Ordinance No. 6 of 1918, (8)that the defendant was, on his claim in reconvention, entitled torecover a sum of Bs. 5,000 as damages.
Instead, however, of dismissing plaintiff's action on the groundthat' the contract was not enforceable by .reason of his default infurnishing to the Registrar of Business Names the particularsrequired by the Ordinance, the District Judge ordered the plaintiffto furnish to the Registrar within fourteen days of his judgmentthe necessary particulars for the- registration of his business undersection 4 of the Registration of Business Names Ordinance anddirected that, on compliance with this order, the plaintiff will beentitled to enforce the decree.
The defendant appeal from the whole decree. But as a decisionin defendant's favour with regard to the enforceability of thecontract will be fatal to the plaintiff's claim, we decided to deal inthe first instance with that question and the defendant's claim inreconvention.
S. C. Minutes of February 5.1925.
29/19192V*
Schneider
J.
S. P. A.Annamdtay
Chetiy v.Thornhill
( 232 )
1927.
MaabtekszA. J.
S. P. 4.AnnamalayCheUy v.Thornhill
The following issues were tried on these two questions: —
Does the plaintiff carry on business under his full true namo
or does he carry on business under a vilasam ?
If the latter, has he failed to register it underthfe provisions of
Ordinance No. 6 of 1918 ?
If so, can he enforce his claim ?
Does the plaintiff5 carry on business under a business name
which does not consist of his full name without anyaddition ?
Did the plaintiff wrongfully and without any manner of right
or title thereto cause to be entered in the Land Registryof Ratnapura a caveat as set (out in paragraph 6 of theanswer ?
Was the said caveat entered maliciously by the plaintiff ?
Was the said caveat entered without reasonable and probable
cause ?
– What damages, if any, has the defendant suffered in
consequence thereof ?
What sum, if any, is due to defendant from the plaintiff ?
Do paragraphs 6 and .7 of the answer disclose any cause of
action against the plaintiff ?
Did the plaintiff wrongfully issue a caveat ?
Even if the issue of caveat be held wrongful can defendant
claim any damages ?
The first question for decision is whether the plaintiff was tradingunder a name which was not his true full name without addition.
The defendant's contention is that,..according to the custom of theChetties, like the Tamils and Coast Moors, a boy is given a name towhich is prefixed his father’s name, , that the plaintiff’s full name isSuppramaniam Annamalay and that under the Ordinance he couldhave traded under the name of Suppramaniam Annamalay orS. Annamalay; but that by the addition of the initials “ Pana Ana ”before his final name it ceased to be his true full names withoutaddition within the meaning of the Ordinance.
It will be convenient here to refer to' the relevant sections of the *Ordinance. Section 2 enacts that—
“ (a) Every firm having a place of business in the Colony andcarrying on business under a business name which does -not consist of the true full names of' all partners who areindividuals and the corporate names of all partners whoare corporations without any addition;
" (5) Every individual having a place of business in the Colony andcarrying on business under a business name which does notconsist of his true full names without any addition; and
( 288 )
4,(c)i-Bvery individual or finn :having a place of business in the tffi*i Colony who, or a member of which., has either before or Maakcbhssafter the passing of this Ordinance* changed his name,except in the case of a woman in consequence of marriage— s. P. A,.
shall be registered in the manner directed by this Ordinance/'
* • »
Section ,4 enacts that—
Annamalay
Chetty
ThornhiB
‘Every firm or person required under this Ordinance to beregistered shall furnish, by sending by post or deliveringto the Begistrar at. the register office in that -part ofthe Colony in whieh the principal • place of business ofthe firm or person is . Bituated, a statement in writing inthe prescribed form containing the following particulars*
The particulars are not material to the appeal.
Sectjon 9 enacts that—
44 Where any firm or person by this Ordinance required to furnisha statement of particulars or of any change in particularsshall have made default in so doing, then the rights of that, defaulter under or arising out of any contract made or..entered into by or on behalf of such defaulter in relation tothe business, in respect of the carrying on of which parti-culars were required to be furnished, shall not be enforce-able at any time . while he is in default, by action orother legal proceedings either in the business name orotherwise.”
Section 20 provides that the expression 44 full name " shall includeany case in which a surname or other final name appears in full, andin which the preceding names either appear in full or are representedby initials, and that the expression 44 business name ” shall meanthe name or style under which any business is carried on, whether inpartnership or otherwise, and, shall include a vilasam.
The plaintiff's case is that S. P. A. Annamalay Chetty is his -finalname with his preceding name represented by initials. Accordingto his evidence this has been his name since he started trading when.20 years old. Before he started trading his name was Annamalay,.but if he* was asked to sign his name he would have signed “ SunaPana Ana Annamalay Chetty.”, He said, however, that the name44 Chetty ” is added when a man starts in business.
* The plaintiff admitted that the Eanakapulle employed by him in*signing on his behalf would prefix the initials 44 S.P.A.” before thesenames to/show the world that they are acting on his business.
In cross-examination the plaintiff said that 14 Suna Pana Ana’”"sure his initials and that vilasam is to him the same as initials.
( 234 )
tva.
i afAABXENSZ
A. J.
S. P.A.AnnamalayChetty v.Thornhill
The plaintiffs attorney Warusakanni Ravuther said that hisvillage in India is 3 miles away from plaintiff's village, that hehad known plaintiff for thirty years and that plaintiff’s name wasSuna Pana Ana Annamalay Chetty.
Later he said that there are Nattu-Kottai Chetties in his village,and that it was an universal custom among all classes of people inhis country to form the full name by prefixing the father’s name tothe individual name. Thus plaintiff's name being AnnamalayChetty and his father's name being Suppramaniam Chetty, his fullname should be Suppramaniam Chetty Annamalay Chetty and wascorrectly stated in the extracts from the Register of Voters (D 1).the Indian Electorate, Ratnapura (D 1 (a)), and in the Householder’sList (D 2).
The witness later said that he filled up the Householder’s List (D 2)according to instructions given to him by the man who brotightit to him. His principal was at that time in India.
The learned District Judge has considered this evidence and theevidence of the two expert witnesses called on either side and hasheld .as follows :—“ According to the Chetty custom the signature* S.P. Annamalay Chetty ’ could have but one meaning, viz.* that theperson signing that name was ‘ Annamalay Chetty the son of Sup-pramaniam Chetty ’ and that he was doing so in a private capacity.The signature 1 S. P. A. Annamalay Chetty ' on the other hand isopen to dual construction. It may either mean that it is a namewhich the Chetty chooses to adopt for the ordinary purposes of lifeor business, or it may indicate that the Chetty intends to representhimself as the agent of some firm or individual carrying on tradeunder the style of the letters or vilasam ‘S.P.A.' Even Mr. WalterBeven admits that if * S. P. A.' does not represent the patronymicinitials of the Chetty the use of that vilasam would indicate that theChetty purported to act on behalf of that firm. Now, there is inthis case abundant evidence of the fact that *S. P. A.’ was thevilasam under which the plaintiff Chetty was trading."
I can see no reason for dissenting from the view taken by theDistrict Judge.
The evidence, in my opinion, establishes that the plaintiff’s truefull name without addition is Suppramaniam Annamalay Chetty.I know from my own experience that it is the custom of Chetties touse initials as a business name.
The initials S. P. would be insufficient as a business name as theycontain no indication of the trader's own name Annamalay. Anattorney signing his name with the initials “ S. P. " prefixed to hisname would not represent Annamalay Chetty but Suppramniam.The “ A " is added in order to show that the business is one carried onby Annamalay Chetty. Thus M S. P. A. " became a business name
( 235 )
or vilasam and was used as such in Pelmadulla, where the plaintiffcarried on business. (See the evidence of Warusakanni Ravutherat page 200 of the record.)
Plaintiff's counsel, however, contended that there was no systemof registration of births in plaintiff's village, that plaintiff alwaysused the name S. P. A. Annamalay Chetty, and that he did notcommit a breach of the Registration of Business Names Ordinanceby carrying on business under that name. In support he cited thecase of King The Inhabitants of Billingshurst.l In that case aperson whose baptismal and surname was Abraham Langley wasmarried by banns by the name of George Smith, having been knownin the parish where he resided and was married by that name only,from his first coming into the parish till his marriage, which wasabout three yearn. The question for decision was whether themarriage was void by reason of the fact that the banns were notpublished in the true Christian and surnames as required by sections2 and18 of Act 26 Geo. II. chapter 33. The Court held that theobject of the statute in the publication of banns was to securenotoriety and that that object could not be better attained than bya publication in the name by which the party is known and the.marriage was held to be valid.
I can see no analogy between the two cases and the ratio decidendiof the case cited is not applicable to the present case.
The plaintiff also contended that he was not in default as he wasadvised that registration of his name was not necessary and becauseNagappa Chetty *s application to register his name was rejected. Iton unable to accept this contention.
The plaintiff can only plead that he is not in default if he had takenall the steps required by the Ordinance to register his business name,and the non-registration of his name was due to circumstancesbeyond his control, as for example the statement of particulars notreaching the Registrar.
There remains the question whether the plaintiff is entitled to theindulgence granted to him by the District Judge of registering hisbusiness and enforcing-his decree. I am of opinion that he is not soentitled.
Section 9 of the Ordinance substantially reproduces section 8 sub-section (1) of the Registration of Business Names Act, 1916.2 Butthe proviso to that section empowering a Court “ on beingsatisfied that the default was accidental, or due to inadvertence, orsome other sufficient cause, or that on other grounds it is just andequitable ” to grant relief either generally, or as respects any parti-cular contract, has not been reproduced. The Ceylon Legislaturethus deprived the Court of the power to grant relief to a person
against his default.
1 {1914) 3 M. dt. S. 250.
1997*
MAABXBNSZ
AJ.
sTjpTa.
Annamalay
Chdtya.
Thornhill
* 6 ds 7 Qeo F. C. 58.
( 336 .)
1927.
JtfAABtrspsz
AJf.
S. P. A.AnnanidUtyCheUy v.Thornhill
Section 9 of the Ordinance differs from section 8 of the EnglishAct in one particular. Section 8 of the English Act declares- that“ any contract made by the defaulter at any time while he isin default shall not be enforceable by action.*’ Section 9 of ourOrdinance, that the rights of a defaulter “ under or arising out of anycontract made by such defaulter shall not be enforceable at any timeWhile he is in default.*'
Bertram C.J. in the case of Jamal Mohideen & Co- v. Meera Saihoet- al.1 was of opinion that the intention of our Legislature wasobviously to mitigate the rigour of the English enactment to enablethe defaulter at any time to purge his default by complying with the^Ordinance, and upon this being done to set him free to enforce his"rights. He held, however, in that case that the default must bepurged before the action is brought; and in the case of KaruppenChetiy et al- v- Harrison & Crosfield. Ltd.,* he said “ the registrationwas a condition precedent to the enforcement of the special right ofproperty 'which the plaintiff claimed," and affirmed the dismissal ofthe action by the District Judge.
There is therefore clear authority for the proposition that theplaintiff is not entitled to purge his default by registration afterbringing the action.
I am accordingly of opinion that the District Judge should havedismissed the action, and would set aside the order appealed fromand make order accordingly.
As regards the defendant's claim in reconvention for damagessustained by him by reason of the caveat entered on June 20, 1924,the facts are as follows': —
This action was instituted on June i9, 1924. On June 20, 1024,the plaintiff lodged with the Registrar a caveat under the provisionsof section 25 of the Land Registration Ordinance, No. 14 of 1891, as.amended by Ordinance No. 29 of 19l7, forbidding the registration ofany deed or instrument affecting 16 allotments of land belonging tothe defendant situated at Denawaka Patakada in extent 616 acres.and 17 perches.
Section 25 enacts as follows: —
(1) It shall be competent to any party to lodge with the Registrara caveat to prevent the registration of any deed or otherinstrument affecting any land or other property as afore-said subsequently tendered for registration. Such caveatshall state a postal address within the Island of the partylodging the same, shall bear the prescribed stamp, andshall be registered free of further duty.
* (2) On such caveat being registered, the party lodging the sameshall be entitled to notice of any subsequent applicationfor the registration of any deed or other instrument. asx
1 {1920) 22 N. L. R- 268.* {1922) 24 N. L. R- $17.
( 237 )
regards such land or other property as aforesaid. 'shich%notice shall be deemed to have been duly, given if posted tothe address stated in the caveat or to any addresssupplied subsequently.
A caveat shall be in force for six months from the date of itsbeing lodged, unless the caveat limits the time of itsoperation to a shorter period.
.(4) Any existing caveat which has been in force for six months orupwards shall be deemed to be vacated within three monthsof the passing of this Ordinance. •
(5) No caveat shall be sufficient to prevent the registration of adeed unless it be followed up wiibhin'thirty days after theposting of the notice of application' for registration1 by tinaction before some competent court and notice thereof tothe Registrar, in which case the Registrar shall suspendthe registration until the final adjudication of such actionsOn August 23 a mortgage bond No. 4,257 executed by thedefendant on August 15,: 1924, to secure-repayment to Mr. ToniWalker of a loan of Rs. 50,000 was tendered for registration at theLand Registration Office, * Ratnapura: The Registrar, on the sameday, issued a notice (P 36) to Mr. Peiris, -plaintiff's proctor, that thebond will be duly* registered if no intimation of an action at law isreceived by him within thirty days of the notice.'
Mr. Peiris on August 28. replied that* he had instituted caseNo. 4,122, D. C. Ratnapura (this case), to recover from Mr. ;ThorahtUthe sum of Rs. 54,577.46 and that the action is pending (P 35), andthe registration of the bond was suspended pending the adjudicationof this case. Subsequently, after representations were made thatthe action No. 4,122 was not instituted pursuant to the notice, thebond was registered on October 14, 1924. _
In June, 1924, the defendant was negotiating for two loahs ofRs. 50,000. and Rs. 100,000 from Mr. Tom Walker and Messrs. GowSomerville & Co., respectively.
The negotiations as regards the loan of Rs. .50,000 had advancedso far that all that had to be done was to search for encumbrancesand draw up the bond.
. When the prospective lenders were told.of the caveat entered- bythe plaintiff, they refused to go further in the matter unless someway was found of “ getting round the caveat.”
At that time the defendant’s assets were worth about Rs. 975,000,and his liabilities amounted to Rs. 160,000. Owing to the caveathe could not raise money, and between June and July, 1924, all hiscreditors came into Court and all his properties were seized.
' Eventually Mr. Walker, who had agreed to lend Rsi 50,000, wasinduced to give him Rs. 25,000 on the personal guarantee of a friend,and the bond-No. 4,257 was executed and tendered for registrationand subsequently registered.
1927.
Maabtknsz
. A.J.
S. P. A,AnnarnalayGhetto v.Thornhill
( 238 )
f
1927.
Maahteksz
ajt.
8, P. A.AnnamalayChetty t>.Thornhill
The defendant’s case is that owing to his inability to obtain theloans of Bs. 50,000 and Bs. 100,000 he had to—
(а)Close his rubber works, which resulted in a loss of Bs. 80,000;
(б)Delay the completion of his road to the saw mills, which caused
a loss of Bs. 2,000 ;
Hold up his planting programme, and estimates his loss at
Bs. 10,000 ;
Cancel an order for 75 maunds of tea seeds at Bs. 125 a maundr
and the price went up to Bs. 250 a maund ; and
Pay Bs. 5,000 in lawyers’ fees.
The learned District Judge in discussing the defendant’s claim fordamages generally says: “ I find considerable difficulty in arrivingat a fair estimate of the* damage which the defendant actuallyustained as a result of this wrongful act. For this the defendant is
/incipally to blame. He has given me an obviously exaggeratedand in consequence a more or less unreliable picture of the positionhe was placed in by reason of the plaintiff’s filing the caveat ”; ” he(defendant) has led absolutely no corroborative evidence of anyimportance in support of his claim of damages *' there is thusonly Mr. Thornhill’s word for it that in the middle of June, 1924, hewas well on the way to securing two loans—one of Bs. 50,000 fromMr. Tom Walker and the other of Bs. 100,000 from Messrs. GowSomerville & Co.—and that it was only the filing of the caveat thatprevented these loans from going through.” He also finds that thereis no internal evidence to support defendant’s evidence that he” was holding the handle of these two loans of B6. 50,000 andBs. 100,000 as securely as he now seeks to suggest.”
There is no definite finding as to whether he accepts Mr. Thora-hill’s evidence or not. It appears to me that Mr. Thornhill hasfailed to prove that he was deprived of two loans of Bs. 50,000 andBs. 100,000 by reason of the caveat entered by the plaintiff.
With regard to the bond No. 4,257 (P 37) dated August 15, 19|24,on which Mr. Thornhill borrowed Bs. 50,000 from Mr. Tom Walker,the District Judge observes that “ in the attestation clause it isstated that no consideration passed before the notary ” and that11 there is nothing to show that the full amount was not paid earlier. ”I agree with him that a great deal depends on this as the extentof the damages sustained by the defendant depends on thedelay which the caveat caused the defendant in the matter of his raisingmoney to pay off his debt and carry out his other businessenterprises.
I am of opinion that the plaintiff can found no claim as regards thealleged loan of Bs. 100,000 as there is no evidence on the record thatthe defendant would have received that loan on a particular datebut for the caveat.
( 239 )
There is no such evidence with regard to the loan of Rs. 60,000.But assuming that the negotiations had proceeded so far that themoney would have been paid over to the defendant at or about theend of June, the claim for damages must be measured by the losssustained by the defendant between that date and the date on whichhe actually received the loan. Of the latter date, as the DistrictJudge points out, there is no evidence.
Again, assuming that he received the loan at or about the time thebond was executed, namely, August 15, 1924, there is in my opinionno definite evidence of the loss sustained by the defendant by reasonof the payment of the money being postponed from the end of Juneto August 15.
In order to establish a claim of this nature the defendant shouldhave placed before the Court facts and figures from which the Courtwould have been able to estimate the loss sustained by him.
I would also point out that apart from the plaintiff's evidence thereis nothing to show that Mr. Tom Walker postponed his loan becauseof the caveat entered.
As regards the claims under the heads which I have set out, thelearned District Judge has examined them in detail and rejected allof them. He has, however, awarded the defendant a sum ofRs. 5,000 “ in satisfaction of his claim in reconvention with legalinterest thereon as from the date of thfc caveat and his costs of theappeal in regard to the issues relating to the claim in reconvention."
The defendant-appellant submits that this amount is inadequate.It was contended that the defendant's evidence established hisclaim for damages under the several heads mentioned by him. Iam quite unable to accept this contention. The evidence is veryvague and unconvincing, and there is a total absence of proof th$tthe defendant suffered any damages by reason of the postponement,if there was a postponement, of the loan from Mr. Tom Walker.
I would therefore dismiss the defendant's appeal from the findingof the learned District Judge as to the amount of damages he isentitled to.
The plaintiff has filed cross objections under section 72 of theCivil Procedure Code against the award of damages. It was con-tended (1) that the defendant had not proved any damages, and (2)that, even if there was such proof, the defendant was not entitled todamages as there was no proof of malice.
In support of the latter contention we were referred to the case ofCroos v. Ramanathan Che tty* in which plaintiff made a claim fdrdamages on the ground that the defendant had unlawfully entereda caveat in the Land Registry of Negombo against the registrationof any title deed affecting the land. Ennis J. was of opinion thatsuch an aetion is really one for an abuse of process analogous to an'' (2924) 5 C. L. R. 164.
i«r.
Maabtbhsk
JkJ.
8. P,A.AtmamalayCHeUye.^ThomMU
( 240 )
wan.
AaT.
-jP*■•dtoMptetfcty6k&&' ».T’AomAiZI
action for malicious prosecution, and that in order to su6ceedtheplaintiff must show that the defendant's act was malicious and thatit was' done without reasonable and probable cause. He also held,that, the form adopted by .the plaintiff in the piaint was one forslander of title ahd m the' circumstances h& could not claim mentalOr moral damages. The case was remitted for further proceedingson, issues framed so as to raise the question of malice and the questionof reasonable and probable cause. On a second appeal Bertram C.J.said'With r6ga*d to the ruling of Ennis J.: “ :It is not possible for usin this case to canvass that decision. It may be that on the matterbeing more fully considered a distinction might be drawn betweena ease in which a man is a party to a document and does claim aregistrable interest, and the case in which a man is not a party toany document at all and is entirely outside the Scope of the section,1and wrongfully invokes a procedure which was intended for anotherclass of person. It may be that in this latter case an action may beheld to lie without any proof of malice.0 (S. C. No. 101—D; C-Negombo No. 16,048 (S. C. Min. of February 5, 1925).)*
On behalf of the defendant it was contended that this was a case'in which “the plaintiff ‘ wrongfully invoked a procedure which was.intended for another class of person. The learned District Judge*has considered' this question in his judgment, and I entirely agree,with him that there is no substance in the plaintiff’s contention thathe was ft party interested in the land by reason of the fact that themoney lent and the rice supplied were for the benefit of Denawakaestate, and would affirin his finding “ that the plaintiff’s actiomin;causing this caveat'to'be filed was wrongful.”
The learned District Judge has examined the evidence very care-fully, arid I entirely agree with his finding that there is no proof ofmalice, I award the defendant the sum. of Rs. 5 as damages.
In .'my opinion-the defendant has entirely failed to prove that hehas suffered any material damage, and he has not, in his pleadings orin his evidence/assessed the amount of damages sustained by himby reason of what the District Judge refers to as ” mental and moraldamages.”
The sum of Rs. 5,000 awarded by the District Judge is anarbitrary amount, for he does not set out how he arrived at this sum.It does not appear to me to be justified by the evidence in thecase.
I would therefore 6et aside the decree declaring the defendantentitled to the 6um of Rs. 5,000 and .award him the sum of Rs. 5 insatisfaction of his claim in reconvention. As regards costs, I woulddirect each party to pay his own costs here and in the DistrictCourt.
1 1927,
( 241 )
* 191, D. C. Negombo, 16,018.
February 5, 1926. Bbbtbam GJ.—
This is a matter which has already been before this Court. '»The action isinstituted by the plaintiff ‘against the dafaaflhnt- for wrongfully filing a caveatunder section 26 of the land Registration Ordinance, 1891. Xt appeared .thatthe defendant had sued and obtained judgment against the plaintiff in .-caseNo. 16,908 of the Negombo District Court, and entertaining some suspicionthat the plaintiff might be likely to dispose of the particular property to hisprejudice, the defendant lodged a caveat under the section referred to. Thatsection authorizes*, any .party in certain circumstances to. lodge-with the. Registry a caveat. By “ party ” it is clearly intended.*1 party to some deedor instrument,” and the object of the section is to allow a person who claims aregistrable interest in the land under some document,, to .prevent anotherregistration being made to his prejudice. The defendant in thus case was nota party in any sense of the word. He did' not come within the scope of thesection at all. His action, was clearly wrongful. The povper to lodge a caveatis not given .to judgment-creditors whether before or after judgment. It isnot intended to be a means of supplementing a procedure which the law allowsfor -sequestration.
The case came'before-this Court on a previous occasion, an4.it was held bymy brother Ennis in a judgment reported in 6 Ceylon Low Recorder 164‘ that the action was really one for the abuse of process and was analogous toan action for 'malicious prosecution and that m Order to succeed the plaintiffshould show1 both'that the act was done maliciously and that it was donewithout-reasonable and probable cause: No issues • appeared to have been
– framed- for the purpose of having this point determined, and. accordinglythis Court sent the case back for the proper issues to be framed and forthe determination of the question whether in fact the defendant's act was donemaliciously and without reasonable and probable cause.
It is not possible for us in this case to canvass that decision. It may'be-that on the matter being more fully considered a distinction might be drawnbetween a case in which a man is a party to a document and does claim aregistrable interest and the case in which a man 'is-"not a party to any docu-ment at all and is entirely outside the scope of the section and wrongfullyinvokes a procedure which was intended for another class of person. It maybe that in this latter case an action might be held to lie without any proof ofmalice. As I have said, however, we cannot consider that question in thepresent case. This Court has made an order, and judgment must proceed in-accordance with that order.
Uaarcekss*-
A.J.
S. f A.Annamalot/'CheUy v.ThorrtAUl
In pursuance of the order of this Court the matter again came before theDistrict; Judge, and he has made a finding of malice. I am unable to-jaee,however, that the facts which be recites in his-judgment justifying any suchfinding. All he imputes to the defendant is a certain amount of thoughtless-ness and recklessness. He seems to consider that the action taken by the*defendant was. Superfluous in his own interest, and that if he had-more fullyconsidered the circumstances he would have seen that there vyas no occasionto take it. He says:7 “ Here there is recklessness tantamounting to malice.
It is quite true that in particular circumstances a Court may infer from thereckless behaviour of a particular person that he was animated- by maliceagainst the. person complaining. – But in that case the Court finds malice byreason of the recklessness. It is hardly correct to say that recklessness mayamount to malice. If the phrase is used it can only be properly used in thesense: I have explained, namely,* that th^recklessness was such that the Court-infers malice therefrom.
In view of these considerations I do not think that the finding of the learned -'District Judge can be justified, and in the absence of malice no action liesagainst tbe defendant. I would therefore allow tbe appeal,- with costs*
Schneider J.—I agree.