055-NLR-NLR-V-37-WICKREMESURIYA-v.-SILVA.pdf
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POYSER J.—Wickremesuriya v. Silva.
1935Present: Poyser and Koch JJ.
WICKREMESURIYA v. SILVA.
277—D. C. Kandy, 43,984.
Promissory note—Nonr compliance with requirements of section 10 of the MoneyLending Ordinance—Note not fictitious within the meaning of sections13 and 14—Action on money count—Ordinance No. 2 of 1918, ss. 10 (1),13, and 14.
Where a promissory note is not fictitious within the meaning of sections•13 and 14 of the Money Lending Ordinance, an action on the money count
lies even though the note fails to comply with the requirements of section10 of the Ordinance.
PPEAL from a judgment of the District Judge of Kandy.
N. E. Weerasooria, for defendant, appellant.
L. A. Rajapakse (with him J. R. Jayawardene), for plaintiff, respondent.
Cur. adv. vult.
September 12, 1935. Poyser J.—
In this action the plaintiff sued the defendant for Rs. 1,600.65 beingprincipal and interest due on four promissory notes. At the trial it wasadmitted that the defendant had signed the promissory notes and that thesum claimed was due.
POYSER J.—Wickremesuriya v. Silva.
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It was at the same time, however, contended that as the notes did notcomply with the requirements of section 10 of Ordinance No. 2 of 1918,they were unenforceable.
The plaintiff then moved to amend his plaint and this motion was ofconsent allowed. In his amended plaint the plaintiff claimed in thealternative for money lent. The plaintiff gave evidence in support of hisclaim but the defendant did not give evidence or call any witnesses butrelied on his previous objection that the notes were unenforceable andthat the alternative claim was prescribed.
The Judge finds that the promissory notes complied with the provisionsof the Ordinance and, in regard to the issues framed in respect of thealternative claim, held that the monies were lent on the dates set out andthat the claim was not prescribed.
The petition of appeal was admittedly unsatisfactory; it did not set outconcisely, as required by section 758 of the Civil Procedure Code, thegrounds of objection to the judgment appealed from but set out some ofthe issues that were framed at the trial and stated the ground of appealwas that the Judge’s decision was contrary to law.
We decided however to hear the appeal, but only on the questions oflaw that could be said to be indicated by the petition of appeal, viz.,whether the notes conformed with the requirements of the Money LendingOrdinance or not, and if not, whether the plaintiff could recover on thealternative claim.
The notes sued on do not, in my opinion, conform to the requirementsof the Money Lending Ordinance. They were not substantially in theform given in the schedule to the Ordinance (section 10 (4) ), nor do theyset out separately or distinctly the capital sum actually borrowed (10 (1)(a) ), or the amount of any sum deducted or paid at or about the time ofthe loan, as interest, premium, or charges paid in advance (10 (1) (b) ).They only set out a promise to pay a certain sum and interest at a certainrate.
I do not consider therefore the Judge was correct in holding that suchnotes complied with the requirements of the Ordinance.
In view of this finding the Judge did not consider whether it was a casein which relief should be given under the proviso to section 10 (2), but ifthe point had been considered and the principles laid down by Garvin J. inFernando v. Fernando1 had been applied, I do not think there is any doubtthat such relief should have been granted for the plaintiff does not appearto have intended to evade the provisions of section 10, and the Judgefinds the plaintiff’s books were carefully kept and the debits and creditstherein are not questioned.
As, the notes are not, in my opinion, enforceable, the next point toconsider is whether the plaintiff can recover on the money count. In myview he can for the principles laid down in Sockalingam Chettiar v.Ramanayake' do not apply to this case.
The decision in that case proceeded largely on the ground that thenote in question was fictitious within the meaning of sections 13 and 14 of
the Ordinance.
-> (1934) 36 N. L. R. 77.
* SS N. L. R. 33.
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KOCH J.—de Silva v. de Silva.
The notes in this case are not ‘ fictitious ’ within the meaning of thesesections and the plaintiff has not incurred a penalty ; he can thereforerecover on the money count. See Fernando v. Fernando (supra).
It only remains to deal with the argument whether the plaintiff’saction on the money count was prescribed. The Judge has held that itwas not.
Counsel for the appellant sought to show, by reference to the evidence,that such claim was prescribed. As previously stated, however in viewof the notice of appeal, I do not think we should go into the question ofthe sufficiency of the evidence or otherwise in connection with this finding.
The appeal is dismissed with costs.
Koch J.—I agree.
Appeal dismissed.