091-NLR-NLR-V-24-THE-ATTORNEY-GENERAL-v.-COSTA-et-al.pdf
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Present.: Schneider J.
THE ATTORNEY-GENERAL v. COSTA ct al,
76:—C. R. Colombo, 671.
Bond by a minor along with her father as surety to go through a course
at the- Training Coliege and serve for five years as a teacher—Is
bond valid?—Penalty—Liquidated damages.
The first defendant, who was a minor, entered into a bond withher father as surety agreeing to pay His Majesty the King thestun of Rs. 300. The conditiod of the bond was that if the firBtdefendant would complete the prescribed course for the studentsof the Miisffius Training College and immediately thereafterbe a teacher in some registered school, for five years, then theobligation shall be noil and void. The first defendant presentedherself for some examination, and, on failing, abandoned hertraining. The Crown sued on the bond. The Commissioner ofRequests held that as the bond was not in the form.. prescribedin the Education Code, the action was not maintainable.
Held, (1) That as the bond was for the. benefit of the minorthe contract was binding on the minor; and that as the fatherjoined in the bond, the contract was binding on her. .
The fact that the bond was not in the form prescribed inthe Code did not affect the validity of the bond.
Under our law even a penalty may be recovered if it be notingens or immanis.
The • amount stipulated even under the English law wasin the nature of liquidated damages.
fJlHE facts' are set out in the judgment.
Brito-Mutiunayagain, C.C. (for Crown), appellant.
X). B. Jayatileke, for respondent.
November 2, 1922.. Schneider J.—
In this "action the plaintiff sued upon a Donci entered into byhim on the one part and the first and second defendants on theother part. The bond is dated July 24, 1921. It would appearthat at that date the first defendant was a minor,, and seconddefendant, who entered into the bond as surety, is her father.The bond stipulated that the defendants were bound in a sum ofRs. 300 to be paid to His Majesty the King. The bond recitesthat on November 11. 1920, the first defendant entered into theMusseus Training College as a student. The condition of the bondwas. that if the first defendant would complete “ the prescribed coursefor the students of the Musseus Training College and immediatelythereafter be a teacher in some registered school in Ceylon
1882.
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1028.
Schneider
J.
The
AttorneyGeneral v.Costa
under the management of the Buddhist Theosophical Society or ofany other Buddhist Society or Buddhist school for and duringfive consecutive years, then this obligation shall he null and void.”It would appear that the first defendant presented herself for someexamination in connection with her training course and failed.She, thereupon, on August 8, 1921, left the Musseus College,and abandoned her training. The action is founded upon the allegedbreach on her part of the condition of the bond. The defenceraised to the action was that the first defendant was a minor, andthat, therefore, the contract is not binding. The learned Commis-sioner has rightly held that this defence is not sustainable, becausethe bond was entered into, for the benefit of the minor, the firstdefendant, and it seems to me it is also unsustainable for anotherreason, viz,, that she entered into the bond with the authorityof her father, who, I take it, is her guardian. But the learnedCommissioner has dismissed the plaintiff’s action for reasons whichdo not commend themselves to. me, and which I am unable touphold. He appeal's to have considered the Government Grant-in-aid Code, and to have come to the conclusion that the bond wasnot in the form prescribed by that Code. It seems quite clearto my mind that the learned Commissioner was not justified inconsulting the Grand-in-aid Code in order to interpret a contractentered into by parties with all the solemnity of a bond. Partiesmust be held bound by the terms of the bond. It is equally clearto me that by the bond the defendants undertook to pay a sum ofRs. 300 as damages if first defendant failed to qualify herself as atrained teacher, and thereafter to serve as a teacher for a certainperiod of years'. When she failed her examination and discontinuedthe course of studies, she clearly committed'a breach of the conditionof the bond, and thereby became liable to pay the sum stipulatedin the bond. 'It was contended in argument that she, by failingat that examination, made it impossible for herself to completeher course of training. 1 do not know whether that would 'be soor not, but assuming that to be so, it would be no defence to theaction, because her stipulation – was that she would pay that sumof Rs. 300 in case she did not complete her coui*se of training orrender service thereafter. I would, therefore, hold that there hadbeen a default on the part of the first defendant, and that thedefendants are, therefore, liable'upon the bond. It was then arguedthat the sum of Rs. 300 is a penalty, and should not be .regarded as
Q
liquidated damages ; that no damages have been proved ; and that,therefore, the plaintiff was not entitled to claim any more thannominal damages. The defendants’ case may be a hard one, butI do not think that I would be justified in laying down bad lawbecause of a hard case. The Roman-Butch law does not recognizethe English law distinction between penalty and damages. Underour law even a penalty may be recovered if it be not ingens or
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imm-anis. It was so pointed out in Fernando v. Fernando.* Ido not regard the sum of Es. 300 stipulated in the bond as apenalty, even as the term is undei'Stood in the English law. It Isin the nature of liquidated damages for the reason that upon a breachof any one of the conditions of the bond it would be almost impos-sible to assess damages. Damages in those circumstances do notmean what the Department of Public Instruction may have had topay or actually had to suffer in this particular instance. Itshould be taken into consideration that in pursuance of the policyof Government large sums of money are' spent by Government,and that, therefore, failure on the part of one single person whomay make default may have more far-reaching effects that ar-eapparent when the particular instance alone is considered.
I am, therefore, of opinion that Judgment should be entered forplaintiff as prayed for, with costs. It is urged that the firstdefendant is a village girl in poor circumstances. If that be thefact, perhaps representation might be made to the proper authoritiesfor some relief. My duty is to decide the case upon legal materials,and I must therefore allow the appeal, with costs, and set aside thejudgment of the Court below and give judgment for the plaintiff as .prayed for, with costs.
1982.
SCHNBIDKB
J.
The
Attomey-Qeneral v.Costa
Appeal allowed.