NATCHIAPPA CHETTY v. TAMBYAH.

NATCHIAPPA CHETTY v. TAMBYAH.

D. C., Colombo, 6,986.

Promissory note payable on demand-Claim for unstipulated interest-Summon issued on the special form provided for action for recovery of liquidated amount under s. 703 of the Civil Procedure Code-Improper claim under summary procedure-Leave to defend the claim for interest-Duty of Court as to such claim for interest-Application of English decisions to procedure of Ceylon Courts.

Where a plaintiff brought an action on a promissory note payable on demand, claiming principal and interest, and was allowed a summons under chapter 53, and the defendant was given leave to defend on certain terms the claim for interest,-

Held that, as the note was payable on demand, without any stipulation as to interest, and the date of demand appeared to be the date of the institution of the action, the claim for interest was illegal and was not a proper subject for the summary procedure of chapter 53 of the Civil Procedure Code.

It was the duty of the Court to have refused the issue of a special summons except on the condition that the claim for interest was struck out.

Bonser, C.J.-In applying decisions on English procedure to the procedure of our Courts, we ought never to lose sight of the essential difference between the two procedures. In the English Courts litigants take each step as on their own responsibility and at their peril, whereas here the duty of taking the greater part of the steps in a litigation is thrown upon the Court. While it may be right to punish litigants for their own carelessness, it is not equally right to punish them for mistakes made by the Court.

ON the 15th February, 1895, this action was instituted on a promissory note, dated 10th May, 1894, for Rs. 2,600 payable on demand. The plaintiff prayed for interest from the date of the note. Summons issued under chapter 53 of the Civil Procedure Code for Rs. 2,778.75 and legal interest on Rs. 2,600 from the date of the institution of the suit.

The defendant filed affidavit averring that demand was made only on 14th February, 1895, and denying his liability to pay the Rs. 178.75 claimed as interest due from the date of the note to the date of institution.

On the defendant's ex parte motion for leave to appear and defend the plaintiff offered to waive interest.

Grenier, A.D.J., held that advantage could not be taken of the offer, and that, as defendant did not contest that the principal sum was due, he should be allowed to defend the action on the question of interest, on paying Rs. 2,600 or securing its payment.

The defendant appealed, and as he did not pay or secure Rs. 2,600 final decree was entered, and the defendant appealed from it also.

Bawa, for defendant, appellant.

Dornhorst, for respondent.

The arguments of counsel are stated and dealt with in the judgment of the Chief Justice.

17th September, 1896. Bonser, C. J.-

This is a case which involves some little technicality. The plaintiff sued the defendant upon a promissory note for Rs. 2,600, dated 10th May, 1894, whereby the defendant promised to pay on demand the sum of Rs. 2,600, nothing being said about interest. On the 15th February, 1895, the plaintiff filed his plaint. It alleged that the note was now overdue, that demand had been made, and that no payment had taken place. The date of demand was not stated in the plaint, so that it must be inferred that the only demand was the institution of the action. The plaintiff claimed the principal sum of Rs. 2,600 with interest at 9 per cent, per annum, which is the legal rate of interest, from the date of the note till payment. The plaintiff then applied to the Court, under section 703 of the Code, for summons to issue on the special form which is provided for actions " where the claim is for a debt or liquidated demand in money arising upon a bill of exchange, promissory note, or cheque, or instrument, or contract in writing for a liquidated amount o

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