083-NLR-NLR-V-39-SILVA-v.-JAYAWEERA.pdf
1938
Silva v. Jayaweera.
Present: Soertsz and Hearne JJ.SILVA v. JAYAWEERA.288—D. C. Chilaw, 10,884.
Promissory note—Payable to any, one presenting on payee’s behalf—Payeeindicated, with reasonable certainty—Validity of note.
Where _ a promissory note was written in the Sinhalese language“ promising to pay on demand by the said K. M. S. or any one presentingon his behalf, the said sum of money
Held, that the payee was indicated with reasonable certainty and thatthe document was a valid promissory note.
The words “ anyone presenting on his behalf ” can be reasonablyconstrued as meaning “ duly presenting on his behalf ” or “ at his instance,presenting it in a manner recognised by the Bills of Exchange Act, e.g„duly endorsed”.
Weerasinghe Hatnine v. Dias (37 N. L,. R. 27) followed; Peter v.Suriapperuma (20 N. L. R. 318) distinguished.
T
HIS was an action on a promissory note written in Sinhalese in thefollowing terms : —
“ I the undersigned A. P. Jayaweera owe K. P. Martin Silva thesum of Rs. 320.53 being balance due for the value of fish received fromhim up to 1st of January, 1931. Wherefore promising to pay ondemand by the aforesaid K. Martin Silva or any one presenting on hisbehalf the said sum of money ….
The learned District Judge, following the ruling in Peter v. Suriapperuma‘held that the payee was not indicated with reasonable certainty in thenote and dismissed the action.
L. A. Rajapakse, for plaintiff, appellant.—The District Judge is wrongin holding that the payee is not clearly indicated. It is only necessarythat the sum should be payable to a specified person or to his order. Thewords here are “to Martin Silva or anyone presenting on his behalf”.The payee therefore is a specified person, namely, Martin Silva. Thewords '* to anyone presenting on his behalf ” are equivalent to “ to hisagent ” or “ or order ”. No particular form of words is necessary as longas the meaning is clear. The document is in Sinhalese.
Peter v. Suriapperuma (supra) on which the District Judge relied isdistinguishable. The words there are “ the heirs of the payee ”.
In any case it is submitted that that case has been wrongly decided.The heirs in English law may not be capable of being ascertained, but sofar as the Ceylon law is concerned they can always be ascertained.
Moreover Yates v. Nashwhich was followed in that case, was adecision based on the old English Statute 3 and 4 Anne, Ch. 9. Thatfollowed the decision in Cowie v. Stirling.*
The Bill of Exchange Act of 1882 expressly altered the law laid down inthese two decisions. See section 7 (2) of Bill of Exchange Act of 1882and the Ceylon Ordinance No. 25 of 1925 has adopted the change. Seealso Chalmers (9th ed.) p. 24 and Byles (17th ed.) p. 95.
1 SO N. Z. R. 318.* (1860) 29 Z. J?., Z. J. O. P 306.
» (1856) 6 E. and B. 333 Ex. Ch.
290SOERTSZ J.—Silva v. J&yaweera.
Apparently this has been overlooked by the Judges in Peter v. Suriap-peruma {supra).
It has been held that a note payable to the trustees of a chapel or theirtreasurer, is good : the treasurer being held to be an agent of the trustee.See Holmes v. Jacques'.
Counsel also referred to Doak v. Robinson *; and Watson v. Evans
The decisions in 124 C. R. Gampola, 5,329*, and Weerasinghe Haminev. Diasr' apply in this case.
N.E. Weerasooria, for the defendant, respondent.—The words “ to anyone presenting on his behalf ”, make the payee anyone at all in the world.The payee may be described in any way, but he must be capable of beingascertained at the time the note is made. Here, a holder of this note willnot know to whom he is to make the payment.
. The ratio decidendi in Cowie v. Stirling 0 applies in this case. Peter v.Suriapperuma {supra) has been decided correctly.
The two cases Weerasinghe Hamine v. Dias {supra) and C. R, Gampolaare single Judge decisions and should not be followed. This case is on allfours with Peter v. Suriapperuma {supra).
Cur. adv. vult.
March 3, 1938. Soertsz J.—
When we are dealing with a promissory note made in the Sinhaleselanguage, due allowance must, I think be made for the fact that wordslike “bearer”, “ hdlder in due course”, “order” in the technical sensethey bear in English Bills of Exchange Acts, are really foreign to thatlanguage. A draftsman well,acquainted with the meanings that these wordshave in English legal phraseology is, therefore unden the necessity toemploy what he considers are" adequate equivalents in the Sinhaleselanguage to give expression to those meanings. There are no conven-tional words available to him for that purpose.
Ill the case before us, the promissory note according to the translationfurnished to us, runs as follows : —“ I the undersigned A. P. Jayaweera
.. . «we K. P. Martin Silva …. the sum of Rs. 320.53, being
balance due for the value of fish received from him up to January1, 1931. Wherefore promising to pay on demand by the aforesaid
K.Martin Silva or any one presenting on" his behalf the said sum ofmoney, together with interest thereon at the rate of 12 per cent, perannum from this day until the date of payment, have set my usualsignature hereunto in the presence of the witnesses signing below ”. Inthe court below it was contended with success that this is not a promissorynote because the payee is not indicated with reasonable certainty. Forthis contention the case of Peter v. Suriapperuma7 was relied upon. Inthat case it was held that a promissory note made payable on demand“by the said creditor or his heirs” was bad because the payee was nota “ specified person ” nor was he indicated therein with reasonablecertainty”. It was said that the “heirs” of the creditor were not
1 (1886) 14 L T. 2$2.*37 N. i. R. 28.
1 0 Emp. Digest s. 219, Note 1. p. 32.537 N. Ij. R. 27.,
3 11863) 1 H. and G. 662.*(1836) 6 E. and B. 333.
7 (1918) 20 N. L. B. 318..
SOERTSZ J.—Silva v. Jayaweera.
291
“ capable of being ascertained at the time the document was signed. l’do not think that that case has any direct bearing on the present case. Itis sufficient to say that the word that created the difficulty in that case—-“ heirs ”—is quite different from the phrase with which we are concernedin this—“ any one presenting on his behalf But Mr. Weerasooriafounded himself strongly on the passage cited and relied on by Shaw J.from the case Yates v. Nash1 where it was stated “though the payeemay be described in any way, yet in order that the bill should be valid,he must be a person capable of being ascertained at the time the bill isidrawn! It must be remembered however that the case of Coioie v.Stirling ‘ was decided in 1856, and that of Yates v. Nash in I860, that isto say, long before it was made possible for a promissory note to be madepayable “ to the holder of an office for the time being That becamepossible on the enactment of the 1882 Act. In Yates v. Nash the bill wasmade payable to the treasurer, for the time being of- a society and. it washeld that the appeal was bad because it was not clear whether the payeecontemplated was the treasurer functioning at the time the bill wasdrawn or the treasurer who might be functioning at the maturity of thebill. That decision ceased to be of much consequence after the 1882 Actcame into force and I fear that the quotation made from it in 1918 wasnot very apposite. In my opinion therefore no assistance can be derivedfrom Peter v. Suriapperuma {supra). "The case that seems to me helpfulis case No. 124 S. C.—C. R. Gampold, 5,359 reported at the foot of page 28of 37 N. L. R* In that case Ennis J. who took part in the decision ofPeter v. Suriapperuma held that where a note was- made payable to A orhis “ Barakaradee ” and where “ Barakaradee ” was translated asmeaning “the person who comes into possession of the note in the propermanner ” was a valid note inasmuch as “ it complies sufficiently with therequirements of the Bills of Exchange Aet as indicating the person whocould recover on the note Koch J. followed this ruling in WeerasingheHamine v. Dias'. Mr. Weerasooria seemed to question these rulings.He asked what does “ in the proper manner ” .mean ? Does it mean“politely” or “in a mood of humility?” The answer to that questionas it seems to me is that “ in the proper manner ” in that context meansin any way required by the Act.
Likewise in this case the words “ or any one presenting on his behalf ”can I think be reasonably construed as meaning “ duly presenting on hisbehalf ” or “ at his instance presenting it in a manner recognised by theBills of Exchange Act, e.g., duly endorsed ”. The Interpreter Mudaliyarof this Court who at my request examined the language of this documentsaid that the Sinhalese words used meant “ any one presenting on hisbehalf or on his authority or • at his instance ” and were a sufficientequivalent of the English words “ to the order of ”.
To adopt the words of Cockburn C.J. in Holmes and others v. Jacques *,“if we are to construe this note differently we should be introducingunnecessary strictness and be defeating justice”. In the present case,the learned trial Judge disbelieved the defence and found that the money
C. Min. dated Sept. 1,1922.
4 {1935}. 37 N. L. R. 27.
(1860) 29 L. J. C. P. 306.
(1856) 6 E. and B. 333.
(1866) 14 L. T. 252.
2B2
Thevanai v. Sinnappu.
was due but he felt constrained by the ruling in Peter v. Suriapperuma, ’to dismiss the plaintiff’s action because the payee was not indicated withreasonable certainty in the note sued upon.
I would, therefore, allow the appeal and enter judgment for the plaintiffas prayed for with costs in both Courts.
Heabne J.—I agree.
Appeal allowed.