JUDGMENTBY: THOMSON CJ, RIGBY AND NEAL JJ

THOMSON CJ (delivering oral judgment): This appellant is a moneylender and it was his case that he lent a sum of $ 2,000 to the respondent and by way of security took a Bill of Sale over certain cattle, it being a condition that the cattle should be kept in a specified locality somewhere in the neighbourhood of Tanjong Rambutan. He alleged that the cattle had been removed from this locality, although incidentally he omitted to allege that they had been so removed fraudulently, and he commenced proceedings for the enforcement of his Bill of Sale.

These proceedings were proceedings taken by a moneylender for the enforcement of a security taken after the commencement of the Money-lenders Ordinance in respect of money lent. I see no reason to doubt that they fall fairly and squarely within these words which I have read from section 21 of the Ordinance.

The matter was commenced by way of Originating Summons and first of all came before the Judge in Chambers. It was then adjourned into open Court, and whatever the technical position be as regards the rights of the parties it seems to be agreed that both parties had it in mind to tender a certain amount of oral evidence.

When the matter came on in Court, counsel for the moneylender took certain preiminary points which I do not think it is necessary to deal with here; and then counsel for the victim also took certain preliminary points, one of which was that the whole proceedings were bad ab initio for want of compliance with a number of provisions of the Moneylenders Ordinance including those of section 21.

In the event the Judge dealt with these points and without giving the parties any further opportunity to be heard dealt with the matter by dismissing the Originating Summons.

It is against that decision that the appellant has now appealed.

For myself I do not consider it necessary to examine the grounds of appeal in detail. The law in this country is perfectly well-settled and has been settled since as long ago as 1941. It is no case of a moneylender being taken by surprise by a new technical defence. The law has been well known to the moneylending community since 1941 and was discussed as recent y as 1956 in the case of Ramasamy Chettiar v Wong Poh Fatt [1960] MLJ 43 where Pretheroe J., after referring to the decision of Terrell J., in the earlier case of Arjan Singh v Hashim Angullia & Ors [1941] MLJ 55 held (I am reading from the headnote):--

"When a moneylender embarks on any proceedings in any Court, a

statement of his account as prescribed by section 21(1) of the

Moneylenders Ordinance, 1951, must be produced at the time the

Originating Summons was filed. Non-compliance with this statutory

requirement is an irregularity which the Court cannot waive and will

entitle the respondent to have the Originating Summons dismissed with

costs."

It is beyond doubt that this case falls clearly within these words. The account was not produced when the Originating Summons was issued and that was fatal to any subsequent proceedings on that summons. In the circumstances I am disposed to go no further than to say that the appeal should be dismissed on that ground with costs. The deposit in Court should be paid out to the respondent against his taxed costs.

RIGBY AND NEAL JJ concurred.

Appeal dismissed.

Click Here to Read the rest of this document