096-NLR-NLR-V-60-A.-SINNATHANGAM-and-another-Petitioners-and-E.-MEERAMOHAIDEEN-Respondent.pdf
394
Sinnathangam v. Meeramohaideen
Present: Weerasooriya, J., and T. S. Fernando, J.A. SINNATHANGAM and another, Petitioners, andE. MEERAMOHAIDEEN, Respondent
8. G. 319—Application in Revision inD. C. Batticaloa, 2887jM
Revision—Abatement of appeal—Power of Supreme Court to consider, in revision*the merits of the appeal—Civil Procedure Code, ss. 753, 750.
Custom—Can it prevail over a statute ‘—Promissory note—Capital sum overstatedaccording to a local custom—Unenforceability—“ Inadvertence ”—Can trans-action be re-opened ?—Money Lending Ordinance (Cap. (it), ss. 2, 10 (2).
The Supremo Court possesses the power to set aside, in revision, anerroneous decision of the District Court in tin appropriate case even though anappeal against such decision has been correctly held to have abated on theground of non-compliance with some of the technical requirements in respectof the notice of security.
The usage of a particular place cannot control the operation of a generalstatute. Accordingly, the provisions of section 10 of the Aloney Lending Ordi-nance cannot be overridden by evidence of the existence of a village customwhich will have the effect of defeating the object of the statute.
The sum actually borrowed upon a promissory note was Rs. 600, but a sumof Rs. 900 was inserted in the note because a custom existed in the village (Kal-munaikudy) in which both the lender and the borrower lived, whereby thesum set forth in the note as borrowed was expressed as one and a half times theactual sum borrowed. Interest was claimed on a capital sum of Rs. 900 fromthe date of the making of the note.
Held, that the local custom could not prevail over the provisions of section10 (2) of the Money Lending Ordinance, according to which the promissorynote was not enforceable. Nor could relief be grunted to the lender underthe proviso to section 10 (2).
Held further, that the transaction could not bo re-opened under section 2 ofthe Money Lending Ordinance.
A
^APPLICATION in Revision in respect of a judgment of the DistrictCourt, Batticaloa.
8. Sharvananda, for the defendants-petitioners.
E. R. 8. R. Coomaraswamy, with Hanan Ismail, for the plaintiff'respondent.
Cur, adv. wilt,
T. S. FERNANDO, J.—Sinnathangam v. Meeramohaideen395
December 30, 1958. T. S. Fernando, J.—
This is an application seeking a revision of a judgment of the DistrictCourt of Battticaloa delivered on 19th June 1958 in an action institutedunder Chapter LIII of the Civil Procedure Code. An appeal lay againstthe judgment sought to be revised but, although a petition of appeal waspresented to the District Court within time, the petitioner appears tohave failed to comply with some of the technical requirements in respectof the notice of security. His appeal was therefore declared by theDistrict Judge to have abated. Counsel for the respondent has referredus to several decisions of this Court in support of an argument advancedby him that this is not a case in which this Court should grant relief tothe petitioner against the consequences of a failure to comply with therequirements of the Code. It does not become necessary to considerthese decisions or this argument as counsel for the petitioner does notcanvass the correctness of the declaration that the appeal has abated.
The sole argument upon which the petitioner’s counsel relies is thatthe judgment is manifestly erroneous in law, and that this error in lawhas resulted in a denial of the petitioner’s right to have the actioninstituted against him dismissed. He refers us to two fairly recentdecisions where this Court has exercised its powers to revise decisionsreached in District Courts in somewhat similar circumstances. Thefirst of these is the case of Abdul Cad&r v. Sitlinisa1, where this Court,notwithstanding that an appeal had abated, heard the appellant by wayof revision observing that it did so as a matter of indulgence and interferedwith the judgment appealed from on a point of law. The other isa more recent and hitherto unreported decision— S. C. 309/D. C. Colombo36064/M— S. C. Minutes of 17th March 1958—in which this Courtwhile rejecting an appeal for non-compliance with the provisions ofsections 755 and 756 of the Civil Procedure Code stated that it would beprepared to deal with the questions raised by way of revision as importantquestions of law arose on the appeal. We do not entertain any doubtthat this Court possesses the power to set right an erroneous decision ofthe District Court in an appropriate case even though an appeal againstsuch decision has been correctly held to have abated. It only remainstherefore for us to examine whether there is a substantial question of lawinvolved here and whether this is an appropriate case for us to exercisethe powers of revision vested in this Court by section 753 of the CivilProcedure Code.
The respondent by this action filed on 1st November 1957 claimedthat the petitioner had on a promissory note dated 28th December 1955borrowed from him that day a sum of Rs. 900 payable on demand withinterest at the rate of 12% per annum. He alleged that accord-ingly a sum of Rs. 1,098 was due to him from the petitioner and heclaimed to recover that sum with legal interest from the date of action.The petitioner gave security in a sum of Rs. 1,000 and was permitted to
1 (1951} 52 N. L. R. 536.
396
T. S. FEKNANDO, J.—Sinnathungam v. Meeramohaideen
file answer. In his answer the petitioner stated that only a sum ofRs. 300 was received by him and that this sum had already been repaidby him, that the promissory note sued upon was fictitious within themeaning of the Money Lending Ordinance (Cap. 67) and that the notewas therefore unenforceable in view of section 10 (2) of the Ordinance.After trial, the learned District Judge held that the actual sum borrowedby the petitioner was Rs. 600, but that a sum of Rs. 900 was inserted inthe note because of a custom prevailing in the village of Kalmunaikudyin which both the petitioner and the respondent lived whereby when asum of money is borrowed on a promissory note the sum set forth in thenote as having been borrowed is expressed as one and a half times theactual sum borrowed. He held that the note sued upon is a fictitiousnote within the meaning of the Ordinance, but that the note is notunenforceable as—to use his own words—“ this custom must be giveneffect to despite the existence of the Money Lending Ordinance ”. Inthe result he gave judgment for the respondent in the full sum of Rs. 900with legal interest thereon from date of action. The judgment did notallow interest from the date of the making of the note, but the result hashad the effect of awarding interest on Rs. 600 at a rate in excess of twicethe rate appearing on the note.
No authority appears to have been cited before the trial judge, andcertainly none has been submitted to us, to show that custom can prevailover the plain words of the statute. It is good law that the usage of aparticular place cannot control the operation of a general statute. In theold English case of B v. Hogg1 it was argued that a certain class ofproperty in the town of Rochester was not liable to be rated undersection 1 of the Poor Relief Act, 1601, because it was not the custom ofthe town to rate that class of property. “ We are ”, said Grose J..
“ interpreting a universal law, which cannot receive different constructionsin different towns. It is the general law that this kind of property shouldbe rated, and we cannot explain the law differently by the usage of thisor that particular place”. Another case in which it was held that alocal custom cannot be set up against a statute is that of Noble v. Durell2.
It was established in evidence in that case that a custom existed inSouthampton that every pound of butter sold in the markets shall weigh18 ounces. Counsel contended that this custom attempted to setup a particular weight for Southampton and could not be suppor-ted as it was contrary to several statutes which directedthat there shall be only one weight throughout the Kingdom.Upholding this contention, Lord Kenyon C.J. observed that to saythat the custom can be supported would be to violate all therules of language as long as the Acts of Parliament are to regulate thesubject. Ashhurst J. in the same case, agreeing with the Chief Justice,stated that “ the only ground on which this custom can be supported is asupposition that the legislature did not intend to interfere with thecustoms of any particular place. But that is totally unfounded; for the
(1787) 1 T. B. 721 ; 99 E. R. 1341.
* (1789) 3 T. R. 271 ,109 E. R. 569.
T. S. KEBNANDO, J.—Sinnathangam v. Meeramohaitleen397
legislature supposed that at the times when the several Acts passed,different weights and measures prevailed in different towns ; to remedywhich inconvenience they passed those Acts. And in none of them isthere any reservation of any ancient customs; but they are applicable toevery place, directing that in future there shall be but one weight andmeasure throughout the kingdom
The object of the Money-lending Ordinance was generally the protection•of the borrower and the provisions of section 10 of the Ordinance cannot,in my opinion, be overridden by evidence of the existence of a villagecustom which will have the effect of defeating the object of the statute.Sub-section (2) of section 10 renders a promissory note in whichthe capital sum stated to have been borrowed is not the capital sumactually borrowed unenforceable in a court of law and relief againstunenforceability can be granted only where a lender can show that thecase is covered by the proviso to that sub-section. Counsel for the res-pondent attempted to show that there was no intention to evade the provi-sions of this section. It seems to me that the facts accepted as proved by thetrial judge show the opposite of inadvertence which as stated in BarmenChetty v. Renganathan PiMai 1 is the effect of inattention, oversight,mistake or fault which proceeds from negligence of thought. Here therespondent’s action in obtaining a note for Bs. 900 when the sum lentwas only Bs. 600, being referable to the custom in the village, must beconsidered to have been deliberate and not due to inadvertence.Further it is impossible, in my opinion, to uphold the suggestion thatthere was no intention to evade the provisions of this section when oneappreciates that interest was claimed from the date of the making of thenote on a capital sum of Bs. 900. I am therefore of opinion that norelief could have been granted to the respondent under the proviso tosection 10 (2).
Counsel for the respondent finally submitted to ns that, as there is afinding that Bs. 600 have been actually lent to the petitioner, the Courtshould re-open the transaction under section 2 of the Ordinance andgrant judgment in a sum adjudged by us to be reasonable. The wordingof section 2 suggests that it is a provision designed for the protection ofthe borrower and not of the lender; moreover, as was suggested byDalton J. in Ramen Ghetty v. Renganathan Pillai {supra), section 2 mayhave in contemplation the re-opening of transactions in the case of loansin which relief was given by the Court under section 10, and in which,apart from the giving of the relief, the notes would otherwise not beenforceable. As in my opinion the non-compliance with the provisionsof section 10 has not been due to inadvertence and is therefore notprotected by the proviso, the circumstances in which action undersection 2 may be considered are here absent.
The decision of the trial judge has followed solely from the erroneousdecision reached by him on a question of law, and this case is in myopinion an appropriate one in which to restore to the petitioner his legal
' .1 (1927) 28 N. L. B. at 343.
Noorbhoy v. Husair
right to immunity from being sued upon a note declared by statute to beunenforceable. I would therefore set aside the judgment and decree ofthe District Court dated 19th June 1958 and direct that the respondent’s(plaintiff’s) action be dismissed with costs. The petitioner will beentitled to the costs of this application.
Weekasoobiya, J.—-I agree.
Application allowed.