Kulasuriya v. Per era
1963Present: Herat, J., and Sri Skanda Rajah, J.♦
W. W. KULASURIYA, Appellant, and G. LISSIE NONA PERERA
and another, Respondents
S. G. 121/62—D. G. Panadura, 7605
Cheque—Notice of dishonour—Parties resident in same place—Time limit for givingnotice—Bills of Exchange Ordinance (Cap. 82), ss. 48, 49 (12).
In the absence of special circumstances notice of dishonour of a chequeis not deemed to be given within a reasonable time in terms of section 49 (12)of the Bills of Ecxhange Ordinance if the person giving and the person receivingthe notice reside in the same place but the notice is not given or sent off intime to reach the latter on the day after the dishonour of the cheque.
x(1937) 39 N. L. R. 321.
SRI SKANTDA RAJAH, J.—Kulasuriya v. Perera
Appeal from a judgment of the District Court, Panadura.
G. Ranganathan, with R. Tillekaratne, for the 1st Defendant-Appellant.
Cecil de S. Wijeratne, for the Plaintiff-Respondent.
Siva Rajaratnam, for the 2nd Defendant-Respondent.
December 10, 1963. Sri Skanda Rajah, J.—
This is an action brought by the plaintiff in respect of a cheque whichwas endorsed by the first defendant to her.
It would appear that it was a cheque issued on the Bank of Ceylonat Panadura drawn on the 7th September, 1960, and on the back of itis an entry “ To be presented on 7.10.60 ”. The drawer, the seconddefendant, the endorser, the first defendant, and the plaintiff are all fromWadduwa, the town adjoining Panadura. The cheque was presentedfor payment on 6th December, 1960, by D. J. Perera, to whom theplaintiff had endorsed the cheque, and it was dishonoured with theendorsement “ Refer to drawer”. On 6th December itself D. J. Pererabrought to the notice of the plaintiff that the cheque had been dishonoured.The plaintiff's evidence is that she was told about it on the night ofthe 6th December. Even the endorser has to be given notice of dishonour—vide Section 48 of the Bills of Exchange Ordinance. Even if one acceptsthe evidence of the plaintiff that the notice of dishonour was given tothe first defendant on the 11th January, 1961, the question is whetherit was due notice of dishonour.
Section 49 sub-section (12) of the Bills of Exchange Ordinance,Chapter 82, reads as follows :—
“ The notice may be given as soon as the bill is dishonoured,and must be given within a reasonable time thereafter.
In the absence of special circumstances notice is not deemedto have been given within a reasonable time, unless—
where the person giving and the person to receive noticereside in the same place, the notice is given or sent off in timeto reach the latter on the day after the dishonour of the bill.”
As I have already pointed out the drawer, the plaintiff and the firstdefendant were residing at the same place, but the notice of dishonourwas given only over one month afterwards. An attempt was madeto persuade us to hold that there were special circumstances for thedelay in giving notice of dishonour. The special circumstances referredto are an alleged pilgrimage on which the plaintiff went to India. Itwas also alleged that she returned on the 10th January, 1961, and onthe 11th January she gave notice of dishonour. There is no evidenceas to when she left on this pilgrimage. We cannot hold that there were
Runaratnam v. Sellidh
special circumstances in this case. Notice of dishonour should havebeen given or sent off in time to reach the 1st defendant on 7thDecember. We would, therefore, hold that due notice of dishonourwas not given.
We, therefore, set aside the judgment of the learned District Judgeand enter judgment dismissing the plaintiff’s action with costs bothhere and in the Court below. Costs are payable by the plaintiff-respondent to the first defendant-appellant.
Herat, J.—I agree.
W.W. KULASURIYA, Appellant, and G. LISSIE NONA PERERA and another, Respondents