TYLOS TEA (PRIVATE) LIMITED

VS.

PAPETERIES DE MAUDIT

SUPREME COURT,
S. EVA WANASUNDERA P.C, J.
ANIL GOONERATNE J.
NALIN PERERA J.
SC (CHC) APPEAL No. 28/2008
HC (CIVIL) No. 261/2005 (1)
16.02.2017.

Prescription- Goods sold and delivered - Section 6 and 8 of the Prescription Ordinance - Acknowledgement of Debt - Section 65 (1) and (7) of Evidence Ordinance - 4 Purchase orders - Chapter V of Civil Procedure Code -Recognised agent - Lapse of time - Quality issue.

This is a direct appeal from the Commercial High Court to the Supreme Court. Plaintiff Company filed action against the Defendant Company to recover moneys due on Tea bag filter paper provided to the Defendant Company.

Plaintiff filed action through a power of Attorney holder as Plaintiff is a Company in France. Defendant Company claimed and pleaded a claim in reconvention. High Court held that Defendant did not prove their claim.

Parties proceeded to trial on 6 admissions and 29 issues. The question of prescription raised in the appeal, based on goods sold and delivered.

HELD:

1. Defendant did not lead any evidence to prove their counter claim, and it was dismissed by court. Further after a lapse of time by X30 dated 30.05.2003 quality problems were raised for the first time and Defendant had not substantiated such a quality issue. This is an after thought and the Defendant could not place any evidence before the High Court to establish any such quality issue. Further the claim of the Plaintiff was for the entire sum due. Issue Nos. 17 to 23 relating to quality issue raised by the Defendant, has been answered by the learned High Court Judge as "not proved".

2. The correspondence between parties indicated the true nature of the transaction, X25 and X27 concedes the total sums due on the transaction.

3. By X27 the Defendant whilst acknowledging X26 apologise for the delay and promise to pay. At this stage there is no complaint of bad quality but an independent written promise to pay. An acknowledgment of a debt in terms of Section 12 of the Prescription Ordinance may also give rise to creation of a new contract, and take the case out of prescription.

APPEAL from the judgment of the Commercial High Court.

Cases referred to:-

1. Vide Ceylon Insurance Company Ltd vs. Diesel and Motor Engineers Co. Ltd. 79(1) SLR 5
2. Lanka Estate Agency vs. Corea 52 NLR 477
3. The Law of Contracts - Prof. Weeramantry Pg. 826

Hiran De Alwis with Chanaka Jayamaha and Heshan Thambimuttu for the Defendant - Appellant
Geoffrey Alagaratnam PC with Senuri De Silva for the Plaintiff - Respondent

ANIL GOONERATNE J.

This is a direct appeal to the Supreme Court. Plaintiff Company, a company in France filed action against the Defendant Company for monies due to the Plaintiff Company for goods described 'as tea bag filter papers' being provided to the Defendant Company and for the reason money due on same have not been settled. The Plaintiff- Respondent Company having its business concern in France had by a power of Attorney holder, authorised to collect and file action on behalf of the Plaintiff Company. A Managing Director of a Private firm called Russel Fredricks Weerappah was the power of Attorney holder of the Plaintiff Company (X2 dated 17.11.2005) and by resolution of the Plaintiff Company (X2a). He gave evidence on behalf of the Plaintiff Company and claim the amount of money described in prayer (a) of the prayer to the Plaint. Defendant by a claim in reconvention as pleaded prayed for same but the learned High Court Judge held that the Defendant did not prove the counter claim and dismissed the counter claim as no evidence was led to prove the counter claim.

The main points urged inter alia before the Supreme Court by the Defendant-Appellant was that the action was prescribed and that there was no written agreement. Learned counsel for the Defendant-Appellant-demonstrated to court that this was a case of goods sold and deliver