Wijeyesinghe V. Don Girigoris

1926 Present: Jayewardene A.J.

WIJEYSINGHE v. DON GIRIGORIS.

210-C. R. Colombo, 13,344.

    Money Lending Ordinance-Promissory note-Sum borrowed wrongly stated-Action on the note-Ordinance No. 2 of 1918, ss. 10 and 13.

A promissory note in which- the sum borrowed is wrongly stated is not void, and an action can be brought on such note.

In such a case the court has power under section 2, sub-sections (1) and (2), of the Money Lending Ordinance to ascertain what sum was actually borrowed and is due from the debtor to the creditor.

APPEAL from a judgment of the Commissioner of Requests, Colombo. The plaintiff as payee sued the defendant, the maker of a promissory note to recover a sum of Rs. 220. The note bore on the margin the particulars required by section 10 of the

Money Lending Ordinance, No. 2 of 1918. The defence was that the sum actually borrowed on the note was only Rs. 80. The learned Commissioner held that the plaintiff had lent only a sum of Rs. 80, as stated by the defendant, and dismissed his action altogether.

S. J. V. Chelvanayagam, for plaintiff, appellant.-On a question of fact, the learned Commissioner has found that the first entry on the margin of this promissory note is false, and has, therefore, dismissed this action under section 10 of the Money Lending Ordinance (No. 2 of 1918). Section 10 only requires certain entries to be made on the margin, and once such entries have been made the provisions of that section are complied with. Whether those entries are true or false, does not matter. (Vide section 10, sub-section (4)).

If they are false, then the Court can act under section 2 (1) (c), but not dismiss the action under section 10.

H. V. Perera (with Rajakariar), for defendant, respondent.- Section 10 (1) (a) says the capital sum actually borrowed. So, if the entry on the margin gives any sum other than that actually borrowed, section 10 applies, and the dismissal of the plaintiff's action is right.

[JAYEWARDENE A.J.-But look at the schedule which says " Capital sum borrowed."] Even if the dismissal is not justified under section 10, it is under section 13. If the taking of a fictitious promissory note is penalized, then no action can be maintained on the contract.

S. J. V. Chelvanayagam, in reply.-The law may penalize the making of a particular contract and yet not avoid it. This Ordinance nowhere makes such a note void. In fact it prescribes the procedure on such transactions in section 2. Otherwise section 2 will be of no effect. Besides, this Ordinance is not meant to alter the law of promissory notes in any way. Its scope is to give only equitable remedies. (See Kadiresan Chetty v. Arnolis.1[1 (1921) 23 N. L. R. 162 (163).])

January 19, 1926. JAYEWARDENE J.-

This case raises questions of some importance in the construction of the Money Lending Ordinance, No. 2 of 1918. The plaintiff, as payee, sued the defendant, the maker, to recover a sum of Rs. 220 due on a promissory note. The note bore on the margin the particulars required by section 10 of the Ordinance. The defence was that the amount actually borrowed on the note was only Rs. 80. The learned Commissioner, after trial, held, that the plaintiff had only lent a sum of Rs. 80, as alleged by the defendant. He did not,

however, give judgment for the plaintiff for the sum of Rs. 80,  but dismissed his action altogether. The plaintiff appeals, and it is contended for him that the learned Commissioner has erred in holding that only a sum of Rs. 80 was lent on the note, and that in any case the Commissioner should have entered judgment in his favour for the sum which he held, had been actually lent to the defendant. On the question of fact, I see no reason to interfere with the finding of the Commissioner.

The question of law is a difficult one. The learned Judge thinks that the note is unenforceable under section 10 inasmuch as it does not state correct

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