Jamal Mohideen & Co. V. Meera Saibo Et Al.,

1920. Present : Bertram C.J. and De Sampayo J.

JAMAL MOHIDEEN & CO. v. MEERA SAIBO et al.

85-D. C. (Inty.) Colombo, 174.

Registration of Business Names Ordinance, No. 6 of 1918, s. 9-Partner-ship-Non-compliance with the provisions of s. 9-Action on a note-May action be suspended till provisions are complied with ?

The plaintiffs, who were partners carrying on business under the name of Jamal Mohideen & Co., brought this action for the recovery of the balance due on a promissory note. At the. time the action was brought the first plaintiff had registered his business name. The District Judge held that the second plaintiff joined the firm after the note was given, but before the action was brought. Upon the second plaintiff joining the firm, the additional particulars required by section 7 of Ordinance No. 8 of 1018 were not furnished.

The District Judge made an order suspending the action until the plaintiffs complied with the provisions of the Ordinance.

Held, that (1) the plaintiffs rights were their right at the date of the institution of the action.

(2) If the second plaintiff joined the firm after the execution of the note, section 9 did not apply, and the action was maintainable.

(3) If, however, the second plaintiff joined the firm before the execution of the note, the action ought to be dismissed; but the plaintiff might, with the leave of Court, withdraw the action under section 406 of the Civil Procedure Code and commence a fresh action after complying with the provisions of the Ordinance.

THE facts appear from the judgment.

Keuneman (with him H. E. Garvin), for defendants, appellants.- Section 9 of Ordinance No. 6 of 1918, the Registration of Business Names Ordinance, says that " the rights of the defaulter . . . . shall not be enforceable at any time while he is in default by action or other legal proceeding." " Enforceable by action " means that no action can be instituted. of section 4 of the Sale of Goods Ordinance. See Britain v. Rossiter,1 Taylor v. G. Eastern Railway,2 Bill v. Bameul.3 These are cases under the Statute of Frauds ("shall not be allowed to be good "), but the words have been held to have the same meaning as "shall not be enforceable. [Bertram C.J. referred to Godfrey v. George4 and Pritchett v. English and Colonial Syndicate.5] The case of Lucas v. Dixon6 emphasizes this point. The local decisions under section 547, Civil Procedure Code, are not applicable, as the language there is " shall not be maintainable." " Maintainable " has a technical meaning, " capable of being proceeded with." See Wood Renton C.J. in Hassen Hadjiar v. Levant Marikar.7 Further, it has been held that the rights of parties must be adjudged at the commencement of the action. Silva v. Fernando.8

There is a significant alteration in our Ordinance. The English Act of 1916 enacts that "any" contract made by the defaulter while he is in default shall not be enforceable by action.". Under our Ordinance all contracts made by the defaulter are attacked whether made while he was in default or before, but the defaulter may at any time before action* brought purge his default by registration and obtain the right to sue.

[BERTRAM C.J.-Do not the words " contract made or entered into by or on behalf of such defaulter in relation to the business in respect of the carrying on of which particulars are required to be furnished" restrict the disability to contracts made after the default?]

Foot Notes.

1 (1879) 11 Q. B. D., at 128, 130.        5 (1899) 2 Q. B. D. 428.
2 (1901) 1 Q. B. 774, at 778, 779.        6 (1889) 22 Q. B. D. 357, at
3 (1841) 9 M. & W. 36.                        360 ; 58 L. J. Q. B. 161.
4 (1896) 1 Q. B. D. 48.                        7 (1912) 15 N.L.R. 275.
                                8 (1918) 15 N. L. R. 499.

The effect of these words is to restrict the disability to business contrasts, and not to affect privat

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