SINNAPILLAI v. VEERAGATHY et al

090-NLR-NLR-V-39-SINNAPILLAI-v.-VEERAGATHY-et-al.pdf


MOSELEY J.—Sinnapillai v. Veeragcffiy.
321
1937Present: Moseley J. and Fernando AJ.
SINNAPILLAI v. VEERAGATHY et all101—D. C. Jaffna, '9,078.
Money Lending Ordinance—Failure to keep books of account—Ignorance of thelaw—Meaning of "inadvertence”—Ordinance No. 2 of 1918, s. 8(2) (a).
The proviso to section 8 (2) of the Money LendingOrdinance is intendedto give relief not to a person who fails to keep books of account but to onewho does keep such books but on a particular occasion, through anoversight, omits to record therein the details of a particular loan.
Semble, failure to keep accounts through ignorance of the provisions-ofthe law does not amount to a default due to inadvertence within themeaning of section 8 (2) of the Ordinance.
Fernando v. Fernando (36 N. L. R. 77) and Dewasurendra y. deSilva. (34 N. L. R. 313) referred to.
^JPPEAL from a judgment of the District Judge of Jaffna.
L. A. Rajapakse (with him Soorasangaram), for plaintiff, appellant.
N. Nadarajah, for defendants, respondents.
November 12, 1937. Moseley J.—
This was an action on a mortgage bond, and as the trial was nearingconclusion the following additional issues were framed : —
On plaintiff’s evidence is he a person who carries on the business of
money lending within the meaning of section 8 (1) of the MoneyLending Ordinance ?
If so, can he maintain the action ?
322
MOSELEY J.—Sinnapillai v. Veeragathy.
It must be conceded that the phraseology leaves something to bedesired, and it would-have been better if issue No. 5 had referred to theplaintiff’s admitted failure to comply with the requirements of the said sub-section. Counsel for the plaintiff objected to the addition of these issues,but his objection was overruled and I do not think that the plaintiff wasunduly prejudiced either by the belated introduction of the issues or bythe omission to which I have referred.
The learned District Judge found against the defendants upon the otherissues but held that the plaintiff was a person carrying on the business ofmoney lending within the meaning of section 8 (1), and found further thathis omission to keep books was not due to inadvertence and that he wasnot therefore entitled to relief against . his default. He accordinglyanswered issue No. 5 in the negative and dismissed the plaintiff’s action.Against that order the plaintiff has appealed.
As to whether or not he is a person'who carries on the business of moneylending, the only evidence is that oT the plaintiff himself. He is a schoolteacher, and said “ I lend money also ”. In cross-examination he added“I do a small business in money lending. I lend money on mortgagebonds and promissory notes. I have no account books …. Ihave invested Rs. 6,000 to Rs. 7,000 on nearly fifteen bonds. I have tenor twelve promissory notes for an aggregate amount of about Rfe. 1,500…. I have been doing this for the last, twenty or fifteen years. I
did not know it was necessary to keep account- books ”. On that evidenceI do not know how the District Judge could have come to any other con-clusion than that the plaintiff was a person carrying on the business ofmoney lending within the meaning of the sub-section. Admittedly hekeeps no books. It follows that he has failed to comply with therequirements of the . sub-section.
For the sake of convenience I will set out section 8, which is as follows: —
“ 8(1) A person who carries on the business of money lending, or
who advertises or announces himself or holds himself out in any way ascarrying on that business, shall keep or cause to be kept a regularaccount of each loan, clearly stating in plain words and numerals theitems and transactions incidental to the account, and entered in a bookpaged and bound in such a manner as not to facilitate the eliminationof pages or the interpolation or substitution of new pages.
(2) If any person, subject to the obligations of. this section, fails tocomply with any of the requirements thereof, he shall not be entitledto enforce any claim in respect of any transaction in relation to whichthe default shall have been made.
Provided that in any case in which t-he Court is satisfied—
(o) That the default was due to inadvertence and not to any intentionto evade the provisions of this section ; and
1 (b) That the receipt of the loan, the amount thereof, the amount ofthe payments on account, and the other material transactions-relating thereto satisfactorily appear by other evidence—the Court may give relief against such default on such terms as it maydeem just
MOSELEY J.—Sinnapillai v. Veeragathy.323
The only point for determination is whether or not the plaintiff, byvirtue of the proviso, may be given belief against his default. He claimsrelief on the ground that his ignorance of the legal requirement to keepbooks amounts to inadvertence, and that he had no intention to evadethe provisions of the section. The point is a nice one and has occupiedthe attention of this Court for many years, not only in connection withthis section but as regards section 10, which contains a similar provisionfor relief in cases where the particulars required to be set out in promissorynotes have been omitted.
The most recent authority to which we have been referred is the case ofFernando v. Fernando In 1that case the promissory note the subject ofthe action did not comply with the requirements of section 10 (1). Theplaintiff said he had accepted the note in the belief that it was in properform and in ignorance of the provisions of section 10, and Garvin J. said,“ it is impossible to say that he took it with any intention to evade theprovisions of that section. The word ‘ inadvertence ’ has the followingmeanings attached to it: ‘ inattention ‘ oversight ‘ mistake ‘ forget-fulness which proceeds from negligence of thought ’ …. But the
word must be given an interpretation with reference to the context ”.The learned Judge was disposed to give the word the widest possiblemeaning. He continued “To hold that the word ‘inadvertence’ is usedin a sense which completely excludes ignorance of the requirements ofsection 10 is to hold that the legislature, while intending to give relief to aperson who with knowledge of the law accepted a promissory note whichdid not comply with the requirements of that section through oversight,mistake, or negligence of thought, did not mean to extend the relief to aperson who did so in complete ignorance of that provision of the law.This in my judgment is too narrow a view of the section ”. He claimedsupport for his conclusion from the. judgment of Shaw J. in the case ofBhai v. John*, in the course of which the learned Judge thought that ifthe money lender was unaware of the provisions of the Ordinance, it mightreasonably be found that his default was due to inadvertence.
In Dewasurendra v. de Silva3, Macdonell C.J. did not think that a pleaof ignorance of the requirements of the law could be accepted.
In the case of In re Jackson & Company, Limited *, where therehad been a failure to comply with the provisions of section 25 of theCompanies Act, 1867, Kekewich J. thought that, having positiveevidence that the parties were ignorant of the provisions of the Act, hemight fairly say that the omission was due to inadvertence. It shouldbe noted, however, that the application for relief was made ex parteand such argument as is reported does not appear to have been directedto this point at all.
In Ramen Chetty v. Renganathan Pillai *, Dalton J. in the course of ajudgment, with which Lyall Grant J. agreed, described inadvertence, inconnection with section 10, as “the effect of inattention, an oversight,mistake, or fault which proceeds from negligence of thought”.
In Wickremesuriya v. Silva *, Poyser J. sitting with Koch J., whoagreed, in holding that certain notes did not comply with the requirements
36 N. L. R. 77.
22 N. L. R. 341.
34 N. L. R. 313.
79 Law Times Rep. 662.
28 N. L. R. 339.
4 C.L. W. 89.
324' MOSELEY J.—Sinnapillai v. Veeragathy.
of section 10 of the Ordinance, had no doubt that relief should have beengranted inasmuch as the plaintiff did not appear'' to have intended toevade the provisions of the section. The question of inadvertence and ^of the meaning to be attached to the word does not appear to have beenconsidered.
In Pathmanathan v. Chawla1 Dalton A.C.J.., with whom Koch J. agreed,said that the plaintiff having admitted that books were not kept regularly,had not shown that the default was due tp inadvertence and was nottherefore entitled to relief.
In Nichol v. Fearby and Nichol v. RobinsonMcCardie J. said, “ thequestion is whether or not ignorance of the law may fall within the word* inadvertence ’ ”. He referred to the decisions in the Walsall Case (1892)
O’M. & H. 129), “ where both Pollock B. and Hawkins J. seem to havetaken the view that ignorance of the law was not ‘ inadvertence ’Pollock B. said “ If it were once allowed that a breach of the law, in thesense that there was a misconception of the law, is to be treated as aninadvertence, I do not know where there is to be any limit ”. In theWest Bromwich Case, (1911) 6 O’M. & H. 256, 289, Bucknill J, said, “ I amnot going to attempt a definition of ‘ inadvertence ’, but it certainly doesnot include ignorance of the law ”.
After consideration of these and other authorities McCardie J. arrivedat the conclusion that ignorance of the law may fall within the word“ inadvertence ”. He thought, moreover, that the word in different Actsof Parliament should, if possible, be construed in the same way. “ But ”,said he, “ it does not follow that relief should be granted for acts oromissions due to ignorance of the law. Inadvertence may be light andexcusable. On the other hand, it may be grave and seriously culpableIn ex parte Walker (22 Q. B. D. 384) a Divisional Court (Coleridge C.J.and Hawkins J.) had. refused to grant a candidate at an election relieffrom penalties incurred by him through inadvertence on the ground thathe did not know the provisions of the Act. The case went to the Court ofAppeal, when Lord Esher M.R. consulted the Lord Chief Justice andHawkins J., who adhered to their opinion, but assented to their decision‘being altered by the Court of Appeal, because it came to their knowledgethat relief had been granted by another Divisional Court in similar cases.It was observed by Lord Esher M.R. that “ if the present applicant hadcarefully read section 75 ‘ (the relevant section ) of …. it is -drawn
in such a way that ordinary skill on the part of such a person could not.readily have mastered the fact that sections …. were made toapply .to him ”.
It is not suggested that there is any vagueness in the terms of section 8of the Money Lending Ordinance. One would, however, be more readilyinclined to grant relief to one who did not realize that he was a moneylender within the meaning of the section and therefore under certainobligations than to one who knowing his status did not trouble to ascertainwhat those obligations are.
The general trend of the English decisions seems to be that ignoranceof the law may constitute inadvertence, but the nature, quality, extentand consequences of the inadvertence must be weighed by the Court in
– each case.
* 13 C. L. R. 89.
(1923) 1 K. B. 496.
Saminathan Pillai v. Dingiri Amma.
325
For myself I find great difficulty in reconciling inadvertence with thenotion of ignorance. ‘The word seems to me to presuppose knowledge.If, however, I were in any doubt as to the circumstances in which aplaintiff may be given relief by the proviso to section 8 (2), irrespective ofany meaning which may be applied to the word “ inadvertence ” where itoccurs in section 10 or generally, it seems to me that the matter is clinchedby the very wording of section 8. The first requirement is that a moneylender shall keep .an account of each loan in a prescribed book. Sub-section (2) goes on to say that if he fails to comply with the requirementsof the section, he shall not be entitlfed to enforce any claim in respect ofany transaction in relation to which default shall have been made. Then theproviso provides relief against such default if the Court is satisfied that thedefault was due to inadvertence and not to any intention to evade theprovisions of the section.
It seems to me quite clear that the' only default in respect of which theproviso contemplates the granting of relief is one in relation to the partic-ular transaction in respect of which it is sought to enforce a claim. That,is to say, the default contemplated is the failure to keep an account ofthat transaction, not the failure to keep books generally. Now, thefailure to keep books may be due to ignorance of the requirements of thelaw, but it is scarcely possible that a person who, in accordance with law,- keeps books of account would omit to enter a particular transactiontherein through ignorance, though he might well do so through ' anoversight.
In my view, therefore, the proviso is clearly intended to give relief, notto a person who -does not keep books of account, but to one who does keepsuch books but on a particular occasion through an oversight omits torecord therein the details of a particular loan. In the circumstances, Ido not think that the English authorities to which I have referred areapplicable, and, in my opinion, whatever one may think of the merits ofthe case, the plaintiff cannot be given the relief he seeks.
I would dismiss the appeal with costs.
Fernando A.J.—I agree.Appeal dismissed.