037-NLR-NLR-V-61-SARATHAMANY-Appellant-and-KODDAIMUNAI-CO-OPERATIVE-STORES-SOCIETY-LTD-et-al-.pdf
164 B A SNAYA305,C.J —Sarathamany v. JLoddavmunai Co-operative Stores Society Ltd.
1959Present: Basnayake, C.J., and Pulle, J.
SARATHAMANY, Appellant, and KODDAIMUNAI CO-OPERATIVESTORES SOCIETY LTD. et ah, Respondents
S. C. 199—D. G. Batticaloa, 2,690jM..
Co-operative Societies—Mypothecary action instituted by Society against officer oremployee of the Society—Jurisdiction of the Courts—Mortgage Act, No. 6 of1949—Co-operative Societies Ordinance (Cap. 107), ss. 42(B), 43, 43(1), 45(5)_
Resort to the provisions of the Mortgage Act is not excluded by Section 45(1)-of the Co-operative Societies Ordinance.
Per Basnayaee, C-T.—ct The jurisdiction of the Courts cannot be takenaway by anything short of express words.”
A
IaPPEAL from a judgment of the District Court, Batticaloa.
C. T. Olegasegarem, for 2nd Defendant- Appellant.
G. Renganathan, with. S. Sivarasa, for Plaintiff-Respondent.
Cur. adv. vult.
June 23, 1959. Basnayake, C.J.—
The only question for decision on this appeal is whether the plaintiffthe Eoddaimunai Co-operative Stores Society Limited can maintain thisaction.
Shortly the facts are as follows : The 1st defendant was employed asthe Manager of the plaintiff’s stores from 1st September 1950 till 21stMay 1954. Between 29th December 1953 and 21st May 1954 there wasa loss amounting to Rs. 6,181 -31. At a meeting of the Executive Com-mittee of the Society convened on 1 st June 1954 to consider the loss whichis described in the plaint as a “ leakage ”, the 1st defendant agreed withthe President and the Executive Committee to pay the amount of theloss to the plaintiff.As he was not able to pay the money immediately
he executed deed No. 17985 of 5th June 1954 by which he admitted hisliability and bound himself to pay the amount of the loss. He promisedto pay Rs. 3,181'31 within, three months from the date of execution ofthe deed and the balance he bound himself to pay within six months,interest at eighteen per centum per ammm to begin to run thereafter-As security for its payment he hypothecated a land which he had receivedas dowry.
This action is for recovery of the principal and interest due on thatbond by seizure and sale of the property mortgaged.
The 1st defendant, the ortgagor, did not file answer. The 2nd.defendant who is his ■wife filed answer. She resisted the action on
BASNAYAJKZE, C-J-—Sarothamany v. Boddainvwnai Oo-operatwe Stores186
Society Ltd.
several grounds. But the one that arises for decision on this appeal isthat the plaintiff is precluded from maintaining this action by section 45of the Co-operative Societies Ordinance and that the court has nojurisdiction to entertain it.
Section 45 (1) of the Co-operative Societies Ordinance reads—
“ If any dispute touching the business of a registered Society arises—
among members, past members and persons claiming through
members, past members and deceased members ; or
between a member, past member or person claiming through a
member, past member or deceased member and the Society,its Committee or any officer or employee of the Society,whether past or present, or any heir or legal representative ofany deceased officer or employee ; or
between the Society or its Committee and any officer or employee
of the Society, whether past or present, or any heir or legalrepresentative of any deceased officer or employee ; or
between the Society and any other registered Society,such disputes shall be referred to the Registrar for decision.
“ A claim by a registered society for any debt, demand or damagesdue to it from a member, officer or employee, whether past or present,or any nominee, heir or legal representative of a deceased member,officer or employee, whether such debt, demand or damages be ad-mitted or not, shall be deemed to be a dispute touching the business ofthe Society within the meaning of this sub-section.”
The present action is a hypothecary action for which special provisionis made in the Mortgage Act, No. 6 of 1949. Although it involves aclaim by a registered society for a debt due to it from a past employeeneither the registrar nor an arbitrator to whom he may refer a disputefor disposal has the power to give an award which has the effect andconsequences of a decree in a hypothecary action. The nature of theaction and the special procedure governing it and the issues involved insuch an action clearly exclude the application of section 45, There is afurther difficulty in the way of the appellant.She does not fall into any
of the classes of persons referred to in section 45. That is an addedreason why section 45 is no bar to this action.
Learned counsel for the appellant relied on the case of Sanmugam v.Badulla Co-operative Stores Union1. The facts of that case are differentand have no application to the one before us.
In that case Gunasekara J. cites a passage from Maxwell on Inter-pretation of Statutes (9th Ed.) in support of the view that the jurisdictionof the courts may be taken away by implication. I have examined thecases cited in Maxwell and find that they do not lend support to such an
1 {1952) 5d N. L. B. 16.
186 HA SjSTAYAKTI, C.J.—Sarathamany v. Eoddaimunai Go-operative Stores
Society Ltd.
unqualified statement, Even in Maxwell the words quoted are qualifiedin the 10th edition by the earlier words “ The saying has been attributedto Lord Mansfield that nothing but express words can take away thejurisdiction of the Superior Courts, but it seems that it may in certaincircumstances be taken away by implication The furthest that thosecases go is that the jurisdiction of the courts may be taken away bynecessary implication. But even then the statement is hedged in by somany qualifications that the weight of opinion might be regarded as morein favour of the view that express words are necessary. I shall cite forexample the words of Jessel M. R. in Jacobs v. Brett1 (one of the casescited in Maxwell)—
“ I think nothing is better settled than that an Act of Parliamentwhich takes away the jurisdiction of a superior court of law must beexpressed in clear terms. I do not mean to say that it may not bedone by necessary implication as well as by express words, but at allevents it must be done clearly. It is not to be assumed that thelegislature intends to destroy the jurisdiction of a superior court. Youmust find the intention not merely implied, but necessarily implied.There is another principle, which is, that the general rights of theQueen’s subjects are not hastily to be assumed to be interfered withand taken away by Acts of Parliament. Upon that point I may referto the judgments delivered by the Lord Justices in In re Lundy GraniteCompany (L. R. 6 Ch. 465-468) which I think shew that that is thetrue view to be taken in considering Acts of Parliament, even where itis doubtful whether they do or do not take away such rights. ”
My own view is that the jurisdiction of the courts cannot be takenaway by anything short of express words. I am fortified in that view bythe opinion of the Privy Council in Bennett and White (Calgary) Ltd. v.Municipal District of Sugar City 2, and the opinions of the Judges ofCanada and South Africa. The Privy Council expressed itself thus :
“ The jurisdiction of the courts to determine questions of liability totaxation can only be ousted by clear words, and in their Lordships’judgment it is far from clear that s. 53 was intended to have thateffect. ”
This is a Canadian case and the Privy Council endorsed the view takenby the Canadian Judges. In the South African case of Welkom VillageManagement Board v. Leteno s, the court laid down the definite rule thataccess to the courts cannot be taken away except by clear and unmistak-able terms.
Apart from principle there is a reason why our enactments should notbe construed as taking away the jurisdiction of the courts by implication,even of the nature referred to by Jessel M. R. as “ necessary implication ”.The reason is that according to the established practice of our Legislature 1
1 {1875) L. R. 20 Equity Cases p. 1 at p. 6.
3 {1958) IS. A. L.R. 490.
3 {1951) A. O. 786 at 812.
Kasturiaracd v. Pint
r. 167
from the earliest tunes, where it intends to exclude the courts it says soexpressly, as it has done in the Ordinance under consideration. Sections42(2), 43, and 45 (5) are quoted below as illustrations :—
“ 42 (2). An order made by a liquidator or by the Registrar undersection 40 or section 41 shall not be called in question in any civilcourt, and shall be enforced by any civil court having jurisdiction overthe place where the registered office of the society is situated in likemanner as a decree of that court. ”
“43. Save in so far as is hereinbefore expressly provided, no civilcourt shall have any jurisdiction in respeot of any matter concernedwith the dissolution of a registered society under this Ordinance. ”
" 45 (5). The award of the arbitrator or arbitrators under sub-section (2) shall, if no appeal is preferred to the Registrar under sub-section (3) or if any such appeal is abandoned or withdrawn, be finaland shall not be called in question in any civil court. ”
The appeal is dismissed with costs.
Pulls, J.-
agree that the appeal should be dismissed with oosts. In my opinionthe claim of the Society to obtain a hypothecary decree on the mortgagebond did not arise out of a dispute touching the business of the Society.Nor was there an earlier “ dispute ” because the 1st defendant admittedthe claim of the Society and entered into the bond sued on. In anyevent I am satisfied that resort to the provisions of the Mortgage Actis not excluded by Section 45 (1) of the Co-operative Societies Ordinance.
Appeal dismissed.