S. WICKREMASINGHE, Appellant, and D. R. DEVASAGAYAM, Respondent

021-NLR-NLR-V-74-S.-WICKREMASINGHE-Appellant-and-D.-R.-DEVASAGAYAM-Respondent.pdf


80
Wickremasinghe v. Dcvasagayam
1970Present: Weeramantry, J., and de Kretser, J.S. WICKREMASINGHE, Appellant, andR. DEVASAGAYAM, Respondent5. 0. 601164 (F)—D. C. Colombo, 4S2S0fMContract—Action for recovery of money—Grant oj relief on basi3 of novation—Require-ment of pleadings or issues relating to the question of novation—Evidence—Failure to reply to a business letter—Effect.
Whore, in an action for tho rocovory of a sum of money, the basis of thodefence, according to tho pleadings and issuos, is that there was no contractualnexus betwcon tho ptaintiff and tho defendant, it is not open to tho Court toenter judgment for tho plaintiff on tho ground that thoro was a novation ofcontract between tho plaintiff, o third party and tho defendant and that thothird party had directed tho defendant to paj tho sum in question to thoplaintiff and tho defendant hod undertaken to pay it to tho plaintiff. If aconsideration of novation assumes importance at tho stago of trial, it isnecessary that a specific issue rotating to novation should bo raised by thoplaintiff or oven framed by tho Court itsolf.
Although failuro to reply to a businoss letter written by a plaintiff to thodefendant may amount almost to an admission of a claim mndo by tho plaintiffin that letter, tho presumption may bo robutted by sworn ovidcnco at tho trial.
WEEKAJtAXTKV, J.— Wickrcmasinghe v. Dcvasagayam
SI
Appeal from a judgment of the District Court, Colombo.
II. If'. Jayeivurdcne, Q.C., with B. J. Fernando, for the defendant-appellant. '
C. Ranganathan, Q.C., with J. V. C. Nathaniels and M. Devasagayam,for the plain tiff-respondent.
Cur. adv. vult.
June S, 1070. Weeramantry, J.—
The late Mr. Barr Kumarakulasinghc, Proctor, had paid to thedefendant various sums of money against the purchase of an estateknown as Maldeniya estate. It is common ground that tin's money wasnot the money of Mr. Barr Kumarakulasinghc but that it was made upof various sums received by him from persons desirous of purchasingportions of this estate.
The plaintiff was one such prospective purchaser and he had paidMr. Barr Kumarakulasinghc a sum of Rs. 35,000. According to theplaintiff this sum of Rs. 35,000 was among the moneys paid by Mr. BarrKumarakulasinghc to the defendant.
For reasons which it is not material to examine in detail the sale didnot take place.
The plaintiff seeks the recovery of this sum of Rs. 35,000 on two basesset out in his plaint, namely that the money was paid to the defendantto be held by him at the disposal of the plaintiff and that at the end ofOctober 195S the defendant agreed and undertook to repay it to theplaintiff.. Issues focussing attention on these two bases of claim wereraised at the trial.
The position of the defendant was that there was no legal basis onwhich the plaintiff could seek to recover this money from the defendant,there being no contractual relationship between the plaintiff and thedefendant. Any dealings the defendant had in this connection were notwith the plaintiff but with Mr. Barr Kumarakulasinghc. When theplaintiff gave his money to Mr. Barr Kumarakulasinghc it became Mr.Barr Kumarakulasinghc’s money, which he became liable to return tothe plaintiff and the plaintiff’s right of recovery was against Mr. BarrKumarakulasinghe and nobody else. As far as the defendant wasconcerned his liability being only towards Mr. Barr Kumarakulasinghe,it did not matter to the defendant from whom Mr. Barr Kumarakulasinghehad received the money. The money paid by the plaintiff to Mr. BarrKumarakulasinghe bore no earmark when it was paid by Mr. Barr.Kumarakulasinghe to the defendant. It was pointed out further in
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WEERAMAJJTRY, J.—Wickremaainghe v. Dcvaaagayam
this connection that the plaintiff paid Mr. Barr Kumarakulasinghe thesum of Rs. 35,000 by two cheques P0 dated 23rd November 1957 forRs. 25,000 and P3 dated 2Sth November, 1957 for Rs. 10,000. Mr.Barr Kumarakulasinghe held a receipt PS dated 24th November 1957from the defendant for a payment of Rs. 47,500 made by him being I/10thdeposit towards the purchase of the estate and the plaintiff’s positionwas that the sum of Rs. 35,000 he claimed was part of this deposit.Now, the cheque P2 had been deposited onl}’ on the 25th (vide Bankstatement P4B) as the 24th was a Sundaj- and the Cheque P3 wassubsequent to the receipt P6, thus confirming that it would be impossiblein any event to identify Rs. 35,000 out of the sura paid by Mr. BarrKumarakulasinghe to the defendant as being the plaintiff’s money.
It will be seen, in view of the position taken up by the defendant,that it was essential to the success of the plaintiff’s claim that he shouldbe able to establish a contractual nexus between himself and thedefendant, for without it the money received by the defendant wouldordinarily have had to be returned to Mr. Barr Kumarakulasinghe whoalone could have claimed it. When the plaintiff sought to recover ithimself he assumed the burden of establishing such a nexus.
One would gather from the plaint and the issues suggested that thiswas sought to be done by alleging that there was a distinct agreement orunderstanding that the money was paid to the defendant to be held byhim at the disposal of the plaintiff or alternatively that at the end ofOctober 195S there was a separate agreement by which the defendantundertook to repay this money to the plaintiff.
As I shall presently observe it was conceded by learned Queen’s Counselfor the plaintiff-respondent that the first of these bases did not trulyrepresent the position, for there is no evidence whatsoever to supportthe contention that at the time tire money was paid there was any agree-ment or understanding that it was to be held at the disposal of the plaintiff.According to the documents such a direction if given at all was given muchlater and this will presently be referred to in greater detail.
Tiie plaintiff’s ease is thus reduced to dependence on the second groundindicated, namely, an agreement- by the defendant at the end of October195S to repay the money to the plaintiff and indeed learned Queen’sCounsel who appeared for him at the trial has categorically stated toCourt- at the stage of addresses that if the Court holds that in OctoberI95S there was no agreement by the defendant' to pay the plaintiff,the plaintiff has no claim.
The learned District Judge has in his judgment rejected the positionthat there’ was a contract between the plaintiff and the defendant inrespect of this sum of Rs. 35,000 and has upheld the defendant’s contentionon this matter. He has however gone on to hold that- there was a novationof contract between the plaintiff, Mr. Barr Kumarakulasinghe and the
\ JJKRAMANTRY, J.— Y ichrcr.iasiiujhr v. Dcvasay'iycimS3
defendant and that Mr. Barr Kumarakulasinghc directed the defendantto pay this sum to tho plaintiff and the defendant undertook to pay it tothe plaintiff.
Now, a novation, in the- circumstances of this case- could not bs effectedby a mere agreement between the defendant and the plaintiff, for anessential party to the novation would be Mr. Barr Kumarnkulasinghc,and the essence of such a contract would be that Mr. Barf Kitmarakula-singhe- was ceding his rights to the plaintiff. The pleadings and theissues in question did not visualise this position at all. The issues in theform in which they have been framed suggest on the contrary an agree-ment by the defendant to pay the plaintiff this sum of money, and aslearned Queen’s Counsel for the defendant pointed out at the trial, fclierocould be no liability on this basis, the only possible basis of liabilitybeing an agreement to which Mr. Barr Kumarnkulasinghc was a party.If the plaintiff’s position was that there, was a novation in the sense ofcession to the plaintiff by Mr. Barr Kumarnkulasinghc of the latter’sright of action against the defendant, that was a matter which shouldhave been pleaded and expressly put in issue, for it envisages a contractualrelationship very different from a mere agreement by the defendant topay the money in question to the plaintiff. It lias therefore been strenu-ously contended before us at the hearing of this appeal by learned Counselfor the appellant that in the absence of any pleading to this effect or anyissue on the matter, it was not open to the learned Judge to enter judgmentfor the plaintiff on the basis of nova I ion.
[f a consideration of novation did assume importance at the trial it ieunfortunate that the question of novation was never put in Issue by thoparties or for that matter framed by the. learned Judge: himself, but asthings stand we arc constrained to hold that theie is no issue on thostrength of which the Judge could have entered judgment for the plaintiff,on tho basis of novation.
Indeed except in exceptional circumstances a cession of contractualrights would not require even the consent of the original debtor1 and thoessential parties to that contract would be Mr. Barr Kumarakulasinghcand the plaintiff. Thismattcr assumes more importance in the. light of thefact, already mentioned, that although two bases of liability were setout in the pleadings and the issues, the first of them was untenable andthe plaintiff had thus to depend on only one substantial basis of claim—that there was a contract of agreement in October 1953. In this contractas referred to in the pleadings and the issue Me. Kumarakulasinghc doesnot figure at all. The contract pleaded and put in issue is thus differentfrom the contract of novation not only in respect of its nature and contentbut also in regard to the contracting parties themselves.
1 Wille, Principles of Roman-Dutch Law, 6th cd., p. 360; Lee, Roin'in-DutchLaw, 6th ed., p. 273.
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WEERAMANTRY, J.— Wickremasinghe v. Dtuasagayam
• We do not think it right, when a party has been brought to Courtupon a particular basis of liability, and the trial has also proceeded uponthat basis, that judgment should be entered against him on a differentbasis of which, if that be the footing on which he was sought to be madeliable, he was entitled to be apprised in advance. Moreover it is notpossible for us, sitting in appeal to rule out the possibility that, lmd itbeen a case of novation that was set up and put in issue, the defendantmay have led other evidence to meet such a case.
I .earned Counsel for the plaintiff-respondent in an effort to supporttho courso followed by the learned District Judge has drawn attentionto an issue framed by counsel for the defendant at the trial on the questionwhether the defendant was liable to pay the plaintiff the sum ofRs. 35,000. This issue read literally is in such ample terms as to coverany conceivable basis of liability, and is therefore called in aid asaffording a basis for a finding of novation.
Had this issue in fact meant that any conceivable basis of liabilitynot visualised in the pleadings could be sprung upon the defendant, one ismore than surprised that it was raised by defendant’s counsel. Uponcloser examination however it would appear that this issue was nevermeant to be understood as being of such amplitude, for what was soughtto be emphasised was that the claim, by whomsoever else it might havebeen sustainable, was certainly not sustainable by the plaintiff. Theissue iu question is based upon paragraph i of the defendant’s answer,which, in reply to paragraph 6 of the plaint, denies liability on the part ofthe defendant to pay the plaintiff the sum of Rs. 35,000 or any partthereof. Paragraph 6 of the plaint in its turn avers specifically that acause of action has accrued to the plaintiff against the defendant on thetwo bases already indicated. The cause of action denied in paragraph 4of tho answer is thus not. a cause of action upon any possible basis ofclaim but a cause of action founded on the grounds already indicated.The basis of the defence was that there was no nexus between the plaintiffand the defendant, tho defendant’s relationship having been throughoutwith Mr. Barr Kumarakulasinghe, and the issue under discussion merelyemphasises that oven if the grounds alleged disclose a 1 iability- to pay,such liability is not towards the plaintiff.
For these reasons we consider that it too far offends the principlesgoverning pleadings and issues that tho defendant should be held liableupon tho basis on which judgment has been entered against him.
It remains then to examine the correctness of the other finding of thelearned judge, namely that there was no contract between the plaintiffand the defendant in respect of the sum of Rs. 35,000, for it has beenstrenuously contended that there'was material placed before the learnedjudge indicative of such n contract.
WEJ2RAMA2CTKY, J.— Wickrcinasinyhe r. Dcvasagayam
So
Before proceeding to a more detailed examination of the evidence forthis purpose, I should perhaps at this point put out of the way theplaintiff’s first basis of claim by explaining in greater detail the- reasonsfor its untenability. Thin first ground of claim, pleaded in paragraph 4of the Plaint, is that the sum of Bs. 35,000 was paid by Mr. BarrKumarakulasingho to the defendant to be held by the defendant atthe disposal of the plaintiff, thercbj’ suggesting that the condition thatit was to be held by the defendant at the disposal of the plaintiff wasa condition attaching to the payment at the time it was made. Kowthis is not truly the plaintiff’s position, for his own evidence reveals thatthere was no such condition attached at the time of payment. Thismatter becomes cpiilc clear when one looks at the document P7 fromwhich apparently this phraseology has been borrowed. This language,indicating the position at a much later point of time, has in the plaintbeen attached to the payment itself, a position which even the plaintiffdoes not now seek to support, and which learned Queen’s Counselappearing in appeal for the plaintiff conceded was not the plaintiff’sposition.
Describing this paragraph of the plaint as one ‘ inartistically drafted ’he strongly submitted that we should read into this issue something hocontends was understood by all parties at the trial, namely that it meantthat, b3' reason of an agreement or direction subsequent to fire pajuuentof the sum, it was to be held by the defendant at the disposal of theplaintiff.
Here again 1 am afraid that where so important a matter is left unsaid,the Court would not be justified in altering the entire purport of thoissue by reading into it words which are not there ; nor indeed is it byany means clear that parties proceeded on the basis that they understoodthe issue in tho sense contended for.
I pass now to an examination of the evidence regarding the agreementof October 195S. On this question, as will presently appear, the plaintiff’sown oral evidence is directly opposed to the contention that the partiesreached such an agreement in October 195S. I shall refer presently ingreater detail to all the evidence bearing on such an alleged agreementand it is remarkable that although the plaintiff seeks from thedocuments to have the inference drawn that such a contractor agreementwas made iu October 195S, his oral evidence runs counter to any suchcontention.
ft would be well at this stage to recapitulate the respective positionsof parties as emerging from the evidence led at the trial.
According to tho plaintiff’s evidence, Mr. Barr Kumarakulasinghohad been a classmate of his at school and was therefore very well knowuto him. Some time in 1957 the latter had suggested to him that he should•invest his money in the purchaso and resale of Maldeniya estate. Thedaud was to be blocked out and sold. For this purpose ho was asked to
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WE ERA M AXTR Y, J.— Wickremasinghe v. Dcva-aagayam
put in a 6um of Rs. 35,000 aB a deposit. He understood from Mr. Barr-Kumarakulasingho that the latter hadmade arrangements for the purchaseof the estate and that the balance sura would be put in by him.
The plaintiff gave Mr. Barr Kumarakulasingho the money by thetwo cheques P2 and P3 of November 23rd 1957 and November 2Sth 1957for Rb. 25,000 and Rs. 10,000 respectively. Two cheques were paid asthe plaintiff did not have the full sum but had to withdraw Rs. 10,000from his Savings Bank.
The transaction did not go through as contemplated because infer aliathe Fragmentation Act was passed making tho permission of theFragmentation Board requisite to such a transaction, and this Act cameinto operation on 11th December 1957. In consequence there was delay,and arrangements were still being made to 6ell it when Mr. BarrKumarakulasinghe died on 17th December 195S.
The plaintiff produced a receipt in the handwriting of Mr. BarrKumarakulasinghe marked PI dated 2Sth November 1957 showing thatMr. Barr Kumarakulasinghe acknowledged receiving from the plaintiffa sum of Rs. 35,000 by two cheques, to be utilised for the purchase andsale of Maldeniya estate.
The receipt P6 already referred to by which the defendant acknowledgedreceipt of this sum from Mr. Barr Kumarakulasinghe as 1 /10th deposit,records that it was agreed that if tho purchase was not completed on orbefore the 26th day of February 195S this 6imi was to be forfeited andMr. Barr Kumarakulasinghe would have no claim whatsoever to the sameor any part thereof. This receipt, it is to be noted, is signed on a -/OB-cents stamp without witnesses and is an agreement which is of no forceor avail in law in view of the provisions of the Prevention of FraudsOrdinance.
Towards the end of 195S the plaintiff, desiring to recover his money,saw Mr. Barr Kumarakulasinghe and asked for an accounting of the moneyreceived. At that time he had paid Mr. Barr Kumarakulasinghealtogether a sum of Rs. 57,000. Mr. Barr Kumarakulasinghe gave himan assignment- of three Insurance Policies for Rs. 22,000 leaving a sumof Rs. 35,000 due. This sum of Rs. 35,000 was included according to thoplaintiff in the sum of Rs. 47,500 which was paid to the defendant byMr. Barr Kumarakulasinghe. In proof of the fact that Rs. 35,000 paidby Mr. Barr Kumarakulasinghe to the defendant represented the moneysof the plaintiff, tho plaintiff produced a document P7 written by Air. BarrKumarakulasinghe on Sth September I95S. This was a letter addressed ■to the defendant stating that the sum of Rs. 35,000 handed to him byMr. Barr Kumarakulasinghe was part of tho advance deposited with Mr.Barr Kumarakulasinghe by the plaintiff against the purchase price oftho estate; and that the amount of Rs. 35,000 was to be held by thedefendant at the disposal of the plaintiff. It further stated that if. the-
V E E JR AJSlAN TRY, J.—Wick re mas inghe, v. Devasagayam
87
transaction did not matcrialiBC on or before 31sfc October 195S thedefendant was authorised to refund the said sura of Rs. 35,000 direct tothe plaintiff.
This was one of several documents to which I shall refer later, whosereception was objected to by the defendant-, but which were admitted asbeing documents against the interest of the maker.
Tho document went on to request confirmation of this arrangement bythe defendant, and the suggested confirmation was typed in at the footof the document to the effect that the defendant agreed to hold this sumat the plaintiff’s disposal and to refund the entire amount to him shouldthe transaction not materialise on or before 31st October 195S.
It was the plaintiff’s position that he handed the original of P7 to thedefendant who did not sign it but said that the permission of the Fragmen-tation Board had been obtained and stated that now that it had beenobtained there was no reason to worry about the transaction. Theplaintiff, not wishing the defendant to know that he suspected him,thought it better to “ hang on ” as he would be benefited if the transactionwent through, but kept pressing Mr. Barr Kumarakulasinghe.
The latter from his sick bod wrote three letters all bearing the date25th October 195S. Of these, P10 addressed to the plaintiff, was anappeal to the plaintiff not to worry him as he was very sick. It containedstatements that his money was safe in the hands of the defendant, thatthe defendant had told the plaintiff that he had the sum of Rs. 35,000with him and that tho defendant had told the plaintiff that he would paythe sum to tho plaintiff if Mr. Barr Kumarakulasinghe instructed himto do so. The letter PIO contained further appeals by Mr. BarrKumarakulasinghe to tho plaintiff not to worry him and to leave himin peace. With this letter he enclosed the other two letters to be madeuse of in order to draw the money. These two letters were the lettersPS addressed to t he plaintiff and P9 addressed to the defendant.
The letter PS to the plaintiff contained an undertaking by Mr. BarrKumarakulasinghe not to draw this amount of Rs. 35,000 from thedefendantor to accountfor this amount on account of amounts due on thesale. It also recited that the defendant had promised to pay theplaintiff this sum after 31st- October 195S which was the final dategiven for the completion of this sale.
The letter P9 by Mr. Barr Kumarakulasinghe to the defendent requestedhim to pay to the plaintiff the sum of Rs. 35,000 deposited by Mr. BarrKumarakulasinghe with the defendant on account of the purchase andsale of Maldcniya estate.
The plaintiff states that lie took the letter P9 to the defendant whosaid that the matter would come through.
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WEERAMAJNTRY, J.— Wickrema&inghe v. Dcvasagayam
While the negotiations were in this state of incompleteness Sir. BarrIvumarakulasinghe clicd on 17th December 195S but even at that stagethe transaction had still not been abandoned. This would appear fromthe fact that as late as 12th December 1958, five dajs before Mr. BarrKumarakulasinghe’s death, the defendant wrote the letter Pi9 to hisproctors requesting them to allow Mr. Barr Ivumarakulasinghe to removethe plans of the estate for reference and return. Moreover the plaintiffstates that at no stage did ho come to know that the property was notgoing to be sold and that the sale was stopped because of the death ofMr. Barr Kumarakulnsinghe.
Thereafter the matter took a new turn when Mr. Advocate Yatawaraappeared on the scene. Mr. Yatawara was a relative of the defendant,and the plaintiff and Mr. Yatawara along with the plaintiff’s proctorinterviewed the defendant, who according to the plaintiff stated on thatoccasion that several people were claiming much more than the moneyhe had received and that he proposed to take the matter to court andfile an interpleader action. This action was. not in fact filed. Theletter P13 was then sent by the plaintiff’s proctor to the defendant statingthat the plaintiff had interviewed him along with counsel and that onthat occasion the defendant had admitted that there was a sum ofRs. 35,000 belonging to the plaintiff which had been deposited with thedefendant by Mr. Barr Ivumarakulasinghe on account of the purchase ofMaklcniya estate. It was alleged in this letter that the defendant hadstated to counsel that lie proposed to file an interpleader action. Thisletter dated 9th February 1959 as well as letter P17 dated 2Gth March1959 drawing attention to it and demanding the sum of Rs. 35,000,remained unanswered by the defendant.
The defendant’s position in evidence was a denial that the plaintiffhad ever met him or telephoned him about this transaction till Mr. BarrKuinarakuhisinghc’s death and is therefore a complete contradiction ofany evidence by the plaintiff whereby lie seeks to establish an oralagreement by the defendant to pay him this money.
The defendant stated that his dealings were with Mr. BarrIvumarakulasinghe and that Mr. Barr Ivumarakulasinghe was proposingto sell the estate in blocks to various people and in that connection hadmade an application to the Fragmentation Board. The FragmentationBoard gave the requisite permission in August 195S and in consequenceof tlris delay arising from the Fragmentation Act the defendant wantedfurther time and was granted further time. Nobody other than theplaintiff saw the defendant in connection with this transaction but afterthe death of ?.Ir. Barr Ivumarakulasinghe various people came to thedefendant stating that they had advanced moneys to Mr. BarrIvumarakulasinghe. The defendant refused to give them the moneythey claimed on the basis that the money he had should go to the estateof Mr. Barr Ivumarakulasinghe. The defendant was sued by variouspeople including one Stanley Fernando for Rs. 47,500, one Jayawardeno
WEER AMAKTRY, J.— Wick remasi nylie v. Dcvasagayam
SO
anil a Buddhist priest. The defendant admitted that Mr. Yatawaracame to see him but said that lie (old Mr. Yatawara- that he hadno money belonging to the plaintiff, that the money was Mr. BarrKuniarakulasinghc’s and that whatever moneys were lying with himwere due to Mr. Barr Kumarakulasinghc. The first time he saw theplaintiff Mas after Mr. Barr Kumnrakulasinghc’s death and at no timeprior to Mr. Barr Kumarakulasinghc’s death did he have any indicationthat anybod}' else had anything to do ivith this matter.
He admitted that he did not repty to the letter of demand and statedthat lie felt it was not necessary as it n-as so long after Mr. Yatawarahad seen him. He denied having received letter P13 of 9th February1959, that is the first letter by the plaintiff’s proctor to tire defendantmaking allegations that the defendant had stated he meant to file aninterpleader action.
I shall now proceed to an analysis of the evidence adduced by theplaintiff with a view to examining whether any reason exists forinterference with the learned Judge’s finding that there was nocontract between the plaintiff and the defendant relating to the returnof this sum of Rs. 35,000.
An examination of tire evidence adduced by the plaintiff on the questionof an agreement between the defendant and himself reveals that itconsists of three groups-—oral evidence, documentary evidence and thepresumptions arising from the defendant’s failure to reply to certainletters.
The oral testimony consists of the evidence of. the plaintiff himselfand his proctor Mr. Rajaratnam. The documentary evidence consistsof the letters referred to, some of them being writings of the late Mr. BarrKumarakulasinghc. The admissibility of the latter group of documentswas challenged at the trial on behalf of the defendant, but the learnedJudge admitted these documents as containing declarations against theinterest of the deceased maker. Although there arc portions of thesedocuments which arc not declarations against interest, still it seems tome that bj' and large these documents were correctly admitted, forunquestionably they do contain declarations against the interest of themaker. I shall therefore, proceed to examine the questions arising,on the assumption that the documents are admissible, without enteringupon a detailed inquiry as to whether each separate statement containedtherein constituted a declaration against interest. The third class ofevidence relied on, the presumptions arising from the defendant’s failureto reply to letters of the plaintiff and his proctor, related to the documentsP12, P13 and P14. I shall examine each of these groups of evidencein turn. .
The plaintiff’s oral testimony reveals the following conversationsand moetings between the plaintiff and the defendant regarding thistransaction up to and including the interview which Mr. Yat-an'ara
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TVEER AMANTRY, J.—ITickremcsinghc u. Dcvasagayam
attended: (a) in cross-examination the plaintiff states that he madeenquiries immediately after coming to know of this matter and thedefendant told him that he proposed to sell the estate. He told himover the telephone that he would sell the estate to Mr. BarrKumarakulasinghe. The plaintiff states that he made this inquiry fromtho defendant because ho wanted to make sure of the transaction andthen the plaintiff told him that Rs. 35,000 had been deposited withMr. Barr Kumarakulasinghe.
The plaintiff’s position is that thereafter he used to ring tho defendantvery often and the latter confirmed the fact that tho sale was goingthrough.
(b) The plaintiff says that he handed over the original of P7 dated8th September 195S to the defendant and that the latter did not give itback. The defendant told him on that occasion that the permission ofthe Fragmentation Board had been obtained and he said that now thatthis permission had been obtained he should not worry about it. Thoplaintiff thought he had better “ hang on ” as he would be benefitedif the transaction weiit through. In regard to this meeting when hotook P7 to him he repeats at another point in his evidence that thedefendant stated that he had obtained permission from the FragmentationBoard and that the plaintiff should not worry about it. (c) The plaintiffsays that he took the original of P9 to the defendant who said that thematter would go through and the plaintiff said it was all right. Inregard to the conversation when ho took the letter P9 the plaintiff repeatsin cross-examination that the defendant told him to hold on and thathe had no alternative but to hold on. The plaintiff states at anotherpoint in his evidence that the defendant told him that the statement intho letter was correct. (d) After the letter P12 had been sent by thoplaintiff to the defendant there was the interview attended by thoplaintiff’s proctor and Mr. Advocate Yatawara, at which the defendantsaid that it was true that he had taken Rs. 95,000 in all and that hoproposed to file an interpleader action as several people were claimingmuch more.
The conversation between the proctor, Mr. Yatawara and the defendantwas spoken to by the proctor Mr. Rajaratnam who said that the defendantadmitted that Rs. 35,000 out of the Rs. 95,000 which he had gotfrom Air. Barr Kumarakulasinghe belonged to the plaintiff and that asseveral people were claiming the money there was to be an interpleaderaction. I
I may here observe that I will for the purpose of examining this evidenceproceed on the footing of the learned District Judge’s acceptance of thoevidence of the plaintiff in preference to that of the defendant, and acceptthe totality of the plaintiff’s evidenco as truo.
U’KKH.A M.ANTJi V, •/.— Wickrctnasinyhc * JJecn saga yam
91
No single item in this evidence reveals an understanding that thedefendant was to hold the money lie was paid at.the disposal of theplaintiff or any agreement by him in October 1953 or thereabouts toreturn it to the plaintiff. On the contrary- it is express evidence thatfar from agreeing to return the money the defendant was holding out tothe plaintiff that the transaction was still going through, a positionwhich, whether reluctantly or otherwise, the plaintiff was prepared toaccept.
What is more, the very fact that the defendant- spoke of an interpleader"action is an indication of his unwillingness to return the money, for aninterpleader action would be meaningless in the. context of an agreementto return the money to the plaintiff. This very evidence then againruns counter to the case of tho plaintiff that there was any' sitc-hagreement.
We thus see that any possibility there might be to infer from thedocumentary evidence that there was such an undertaking or agreementis not only' negatived by the specific oral evidence of the plaintiff himselfthat the defendant (as well as the plaintiff) was expecting the transactionto go through, but is also quite inconsistent with the version of a declaredintention on the j^art of the defendant to file an interpleader action.
I pass now to a consideration of the documentary' evidence in the lightof these observations.
The following are the items of documentary evidence relevant to thismatter r
PC—the receipt dated 24th November 1957 from the defendant
to Mr. Barr Kumarakulasinghe for Rs. 47,500.
P7—the letter dated Sth September 195S by' Mr. Barr
Kumarakulasinghe to the defendant stating that the sum ofRs. 35,000 is part of the advance deposited with Mr. BarrKumarakulasinghe by' the plaintiff and that this amount is tobe held by the defendant at the disposal of the plaintiff.
PS, P9 and P10—the group of letters of 25th October 1958 of
which PS contains reference to a promise by' the defendant topay him (the plaintiff) this amount and P10 refers again tohis having told the plaintiff that he would pay' it to the plaintiffif instructed to do so, and also stating that the defendant hadbeen directed to pay' it to the plaintiff.
(y) P12 of 26th December 195S by' the plaintiff to the defendantalleging that on the occasion of his receiving the letter of 25thOctober 195S he had agreed to pay the sum of Rs. 35,000 byinstalments.
(e) P13—a letter from plaintiff’s proctor to the defendant dated9th February 1959 stating that the defendant had admittedthat there was a sum of Rs. 35,000 belonging to the plaintiffwhich was deposited with him by Mr. Barr Kumarakulasinghe.
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WEERAMANTRY, J.— Wickremasinghe v. Devaaagayam
(/) P14—proctor’s reminder of 26th March 1959 in respect of letterP13.
The conflict between this documentary evidence and the oral evidencewill by now have become apparent. The statements in the letter that.the defendant had promised to pay this sum to the plaintiff ill accordwith the oral evidence that when the letter P7 of September 195S wastaken to the defendant, he stated that the permission of the FragmentationBoard had been obtained and that the plaintiff should not now worryabout it, and that when the letter P9 was handed over he said that thematter would go through and requested him to hold on. The plaintiffhaving had an opportunity of giving specific oral evidence of such a.promise has not only failed to do so but has given an account which,conflicts with such a version.
No doubt where a plaintiff has erred in his evidence or has failed togive a correct version for some reason or other, where the documentaryevidence clearly establishes the true position and can unhesitatingly beacted upon, one may in an appropriate case hold oii the basis of thedocumentary evidence despite the failure of the plaintiff to speak to hisversion of matters correctly. But where the plaintiff’s oral evidenceconflicts with his own case and with his documents it certainly becomesdifficult for the court to act upon the documents to the exclusionof the oral testimony.
Furthermore when the documents themselves are far from clear anddo not precisely state when and to whom the promise was made theposition becomes all the more difficult. It will be noted that P10 andP12 do not say to whom the promise v'as made and furthermore P10contains hearsay upon hearsay in that the statement of the deceasedperson apparently reports a version given to him by the plaintiff of aconversation which the defendant had with the plaintiff. The plaintiffhimself having had the opportunity of stating what this conversationwas when ho gave his oral evidence has failed to do so and P10 js thus amost uncertain guide. The plaintiff is also met by the telling circumstancethat although P7 contained at its foot a suggested agreement for signatureby the defendant, the defendant did not sign it thus indicating that atthat stage at any rate he was not desirous of entering into a binding agree-ment, whatever bis views may have been regarding the party to whomthe money should be paid.
We are left finally with the presumptive evidence resulting from thefailure to reply to P12, P13 and P14. Of these three letters P12 aloneasserts an agreement to pay, for P13 speaks only of an admission thatthe money belonged to the plaintiff and P14 is but a reminder in respectof P13. The defendant has denied receipt of P12 and it is to be observedthat the registered postal article receipt P12A which has been producedis not a document proving receipt by the recipient but only proving receiptby the post office of a document addressed to the defendant. It is there-fore not the best possible evidence of receipt by the defendant which the
tVE ER AMAXTR V, J.— Wickrcmasinghc v. Dcvasagayam
93
plaintiff could have adduced. However, assuming that this documentwas received, one would certainly expect a reply from the defendantdenying the allegation therein ihat he had agreed to pay this sum byinstalments so that presuming receipt, it leads to the inference that thefacts it states arc presumably true. That is however only a presumptionand the defendant has on oath denied these facts while the plaintiff havinghad an opportunity to s|)cak to these facts has given a version which doesnot accord therewith. We find it difficult therefore to accept the defend-ant’s submission that failure to reply to PI2 establishes an agreementby the defendant to pay tin's sum. It may also be observed that eventtm case of Colombo Electric Tramways <0 Co. v. Pereira1 which was heavilyrelied on by the plaintiff docs not go the length of saying that failure toreply to a business letter proves the truth of the contents of the letterbut only that it amounts almost to an admission. Thus, although thefailure to reply to this letter is a circumstance which may be urged againstthe defendant, it cannot by itself prove the plaintiff's case.
Of the document P13 I have already observed that it docs not containa statement that the defendant had promised, but only that he hadadmitted this sum to belong to the plaintiff. It was consistently thedefendant’s position that he was not claiming the money to be his ownand the mere admission that it belonged to the plaintiff does not carrythe plaintiff's ease much further even if an adverse inference is drawnfrom the failure to rcplj' to IJ13. This is a far cry from the concludedcontract which the plaintiff must prove in order to obtain relief.
The burden lay upon the plaintiff of establishing the contract on thebasis of which lie sought relief, and wo are afraid the Court is quiteunable in the present case to puzzle out a contract from tho bits andpieces of evidence placed before it-, more especially when the plaintiffhimself has failed in his evidence to assist the Court in regard to thiscentral question.
For these reasons we conclude that the plaintiff has failed to establishthat either at the tiiue the money was paid or in October 1958 thedefendant undertook to repay this money.
Much as this Court would be anxious to help the plaintiff to recoverthe money which he has expended on this fruitless venture, there seemsno basis of law or fact on which he can be awarded judgment againstthe defendant upon the case which he has presented ; and much to ourregret we find ourselves unable to assist him in its recovery. Thisobservation does not however amount in any way to a condonation ofthe conduct of the defendant whose failure to pay back this money eitherto the estate of Mr. Barr Kumarakulasinghe or to the plaintiff, or, if hewere in doubt, to file an interpleader action, is conduct we strongly deplore.This Court cannot however give effeet to its sjmipathj' for the plaintiffand its displeasure with the defendant at the expense of so wide adeparture from legal principle.
1 (1923) 25 N. L. Ti. 193.
94
ALLES, J.—Bata Shoe Company oj Ceylon Ltd. v. Sirisena
In the result wo conclude that the judgment and decreo of the learnedDistrict Judge should be set aside and that the plaintiff's caso must fail.The plaintiffs acti.on is accordingly dismissed. There will be no orderfor costs in favour of the defendant cither in this Court or in the Courtbelow.
de Kbetser, J.—I agree.
Judgment set aside.