019-NLR-NLR-V-22-WIJESEKERA-v.-NAMASIVAYAM.pdf

( 81 )
Do you admit that the former class.pay you Re. 1 per mensemon every Rs. 1,000 borrowed by them from the bank irrespective of thecommission you get from the bank for guaranteeing their loans 1
Do you deny that these sums represented the commission ofRe. 1 on every Rs. 1,000per annum charged by you and were paid to youon your representation that you had guaranteed their overdrafts for themonths of November and December, 1909, and January, February,March, April, May, and June, 1910 ? If you deny it, state on whataccount these sums were severally paid ?
Did you ever guarantee Wijdsekera & Co.’s overdrafts with thebank ?
Do you deny that subsequently, when it was discovered thatyou had. not guaranteed their overdrafts from Novermber, 1909, toJune, 1910, you agreed to refund the said sums amounting in theaggregate to Rs. 4,439*87 ?
The defendant’s answers to these interrogatories were as follows:—
Yes. The European clients deal with the bank through theagent. The Ceylonese and Indians through me on my recommendationto the agent.
The Ceylonese and Indian clients pay Re. 1 for every Rs. 1,000,whether the loans are guaranteed or recommended.
Yes. I deny that these sums were paid to me on representationmade to the plaintiff that I had guaranteed the overdrafts. Plaintiffwas fully aware from the very commencement that the overdrafts hadnot been guaranteed, and that he had to pay the commission to me forrecommending the overdrafts, as in the case of all my other clientssimilarly recommended.
No, but they were given at my recommendation, and, apart frommy express guarantee, I would be held responsible by the bank for anyloss it might sustain as a result of accepting my recommendation.
Yes* Plaintiff knew very well all along that the* commissionwas paid all along, not for guaranteeing, but for recommending over-drafts. I deny that there was any such agreement to refund the sumcfRs. 4,439*87.
At the trial the plaintiff giving evidence in examination-in-chiefsaid that European firms arranged for overdrafts directly with themanager, and that the present custom was for Ceylonese to gothrough the shroff; and that in 1909 some went through the shroff,some did not; when customers went through the shroff, the lattergave a guarantee to the bank, and was paid Re. 1 per Rs. 1,000 amonth; in 1908, December, he paid defendant for Novemberaccount Rs. 263*29 as commission on his overdraft, because the'defendant had made him understand that the defendant hadguaranteed his account; in July, 1909, he said he .discovered thatdefendant had not guaranteed his account, and that plaintiffquestioned him about it, and that defendant admitted that it wasso and offered to refund the money paid as commission. He alsosaid that defendant insisted on the commission being paid in ceush, asdefendant did not wish the manager to know that he was chargingU
1920.
Wijeaekem«. Nama-
sivayam
( 82 )
1020.
Wvjtotlctrav. Nama •.sivayam
plaintiff commission. He further said that he did not know that theshroff of the Hong Kong and Shanghai Bank was entitled to chargecommission on recommended loans, and that loans and overdrafts tohim (the plaintiff) were never recommended by defendant, but that hedealt direotly with the bank. He also added: “ When I challengeddefendant, he admitted he took commission only from guaranteedaccounts. I do not know if others were paying for unguaranteedaccounts.” The plaintiff, on his re-examination, produced inevidence certain letters which had not been included in the list filedby him, and of which defendant had no notice whatever, and in whichMr. Whelan, who was the manager of the Hong Kong and ShanghaiBank at the time the transaction in question took place, hadaddressed him as “DearWijesekera,” containing reference to businesstransactions, and inviting plaintiff to see him, from which he desiredit to be inferred that the. plaintiff’s transactions with the manager,Mr. Whelan, were direct, and independent of the defendant, andwithout his knowledge, and were not covered by the defendant’sguarantee or recommendation.
The defendant in his evidence denied that the plaintiff ever dealtdireotly with the bank, or that he ever told plaintiff that he hadguaranteed defendant’s account, but defendant said he had receivedcommission from the plaintiff, as he was entitled to do accordingto the custom of the bank,-not only from persons whose accounts hehad guaranteed, but also from customers whose accounts he hadrecommended. He further denied that he ever agreed to refund thecommission duly paid to him.
The portion of the judgment of the District Judge, P. E. Pieris,Esq., material to this point was as follows :—
The shroff, if ever he figured to any appreciable extent in the matterof the overdraft, had dropped out of sight long ugo. Whelan was onintimate terms with the plaintiff . . . . In December, 1909,on the 29tli, he wrote personally to plaintiff, addressing him as “ DearWijesekera,” saying that it would be a convenience to the bank ifplaintiff could let Whelan know‘what his probable requirements wouldbe, especially as the'holidays were approaching, and all the banks had tolook after their funds carefully. When the manager writes thus to aclient, the latter requires no assistance from the shroff. In April, 1910,Whelan again wrote to the plaintiff in his own hand, addressing him as“.Dear Wijesekera,” and subscribing himself again as “ yours sincerely,”asking for certain information regarding the overdrafts to communicatethe same to Hong Kong. It does not seem necessary to pursue thematter further. It may be the case that defendant did have somethingto do at the start, when, presumably, plaintiff was not known to thebank, with bringing about his connection with the bank. There isno doubt that plaintiff sought his advice and assistance in order tosmooth the way for him, but oncethe introduction had taken place allarrangements were made by the plaintiff direotly with the agent, andwithout any assistance or interference from the defendant. Largernimii were being handled, and defendant no doubt felt that he wasentitled to have some of the pickings.
1920.
( 83 )
At the argument of the case in appeal the defendant’s counselmoved that a commission be allowed to examine Mr. Whelan, whowas residing in Jersey, in the Channel Islands, as it was impossibleto secure his attendance in Ceylon to give evidence.
A. St. V. Jayawardene (with him E. W. Jayawardene, Bala-singham, H. V.Perera, Croos-Dabrera, Tiyagaraja, and H. E. Garvin),for the defendant, appellant.—The Supreme Court has wide powersunder section 40 of the Courts Ordinance to hear evidence afterjudgment. The only qualification is “ as justice may require.”The defendant was not in a position to know the relevancy ofMr.' Whelan’s evidence till after the plaintiff had given evidence.On the question as to what was the custom, the defendant hasled sufficient evidence. But the defendant was not in a positionto anticipate the letters produced by the plaintiff, which influencedthe District Judge greatly in arriving at a judgment.
Plaintiff should have himself called Whelan if he intended to relyon the letters.
Counsel referred to In re National Debentures and, Assets Corpora-tion,1 Shields v. Boucher,a The King v. Robinson.3
J. C. Pereira (with him EUiott and Bartholomeusz), for theplaintiff, respondent, referred to MvMar v. Kathirasapillai.*
June 23,1920. Bertram C.J.—
After very carefully considering this application, we have come,to the conclusion that it cannot be allowed. 1 announce this con-clusion with some regret, because, in a case the decision of whjchpresents such obvious difficulties as the present, it would have beenmore satisfactory to have had all the light that could have beenshed upon it by a witness of the character of Mr. Whelan. But, inthe circumstances of this case, we are precluded from acceding tothis application. It is quite true that our hands are entirely free inthe matter. Under section 40 of the Courts Ordinance all that weneed consider is the interests of justice. “ Special grounds ” arenot in terms mentioned in the section. Nevertheless, it is obviousthat such a special procedure, as the calling of witnesses after judg-ment, could only be exercised on special grounds, and we should haveto be satisfied in any case that there was some special reason forsuch action., I cannot help being impressed with the very forcibleconsiderations urged in the case of Nash v. Bochford Rural DistrictCouncil,5 which Mr. Pereira has cited to us. Although I do not saythat we should be concluded as regards every case, I think that theysufficiently conclude, the present application. Moreover, it is not
1 (1891) L. B. 2 Oh. D. 605.» (1917) 2 K. B. 108.
* (1846) De Oat and Smote 40.4 (1911) 14 N. L. B. 144.
‘ (1917) 1 K. B. D. 384.
Wijeseherav. Nama-
simtyam
( 84 )
1920.
Bertram
C.J.
Wijesekerav. Nama-siwtyam*
as though we were asked to allow to be called before xua a witnesswho is on the spot, and who could be cross-examined by counselconversant with the facts of the case. We are asked to issue acommission foi; his examination, and, as far as we can see, it will bea commission to examine him, not in London, but in Jersey. As tothe legal conditions of Jersey, we have not very full information.Moreover, apparently the case would not stop there. It is not asthough mere formal evidence is required from Mr. Whelan. Mr.Jayawardene himself expressly desires to take him over certainparts of the evidence which has been given in the case, and Mr.Pereira indicates that in all probability he will have to adducecounter evidence if Mr. Whelan’s evidence is take*a on commission.From the facts of the case I should think that such a procedureis a very likely one. I do not, therefore, think that we should bejustified in embarking upon this new development of the case. Imay further add that, although Mr. Whelan is not apparently ofthe same class of witness as the witnesses referred to in the case ofMuttar v. Kathirasapillai,* then is ”v great force in the principlelaid down by the Chief Justice in that case, that it is dangerous toallow an important witness to be called after the pinch of the casehas been ascertained.
In this case the appellant foresaw the necessity of calling evidenceof local custom as to shroff’s commission. He chose the alternativeof calling such evidence as is locally available, and did not think itnecessary to have the evidence of Mr. Whelan taken on commission.I think he must now stand by that election, and that we must decidethe case on the point on which Mr. Whelan’s evidence would bematerial with the assistance of such evidence as was called in theCourt below.
The application should, therefore, be disallowed.
De Sampayo J.—I agree.
Application disallowed.
♦
(1911) 14N.L.B.144.