Present: Dalton J. and Jayewardene A. J.

MICHELIN & CO. v. DON LEO.

329-D. C. Colombo, 14,179.

    Prescription-Claim by foreign company carrying on business, in Ceylon-Fixed place of business-Residence-Absence beyond the seas-Ordinance No. 22 of 1871, s. 15.

The plaintiff company, which is registered in France, carried on a business in Ceylon in the sale of tyres. The company had an attorney, who resided in Ceylon a few months each year. It had no registered office in Ceylon, but had rented a warehouse from a local firm, which acted as distributing agents of the tyres to customers, registered by the attorney.

In an action by the company for the value of tyres sold the defendant pleaded prescription.

Held, that the plaintiff company was resident within the Island and was not entitled to rely on the disability of " absence beyond the seas " in answer to the plea of prescription.

The expression " person" in section 15 of the Prescription Ordinance includes a corporation.

THE plaintiff company (Michelin & Co,), which is a Joint Stock Company registered in France, sued the defendant to recover a sum of Rs. 3,271 '93, being the value of motor tyres purchased by him. The defendant pleaded prescription, and in answer to the said plea the company claimed the benefit of section 15 of Ordinance No. 22 of 1871, viz., absence beyond the seas, whereby the term of prescription was prevented from running. It appeared that the company did a large business in tyres in Ceylon. It has no registered office here, but it employed an attorney for the purpose of its business in India and Ceylon, who spends five to six months a year in Ceylon. For the purpose of storing goods, it rents a warehouse from E. B. Creasy & Co., who supplied the tyres to customers, registered by the company. The registered customers are agents of the company for the sale of their goods and are paid by commission. The learned District Judge held that the company was resident in Ceylon, and was not entitled to claim the benefit of the disability of " absence beyond the seas."

Hayley (with him Garvin), for plaintiff, appellant.

E. G. P. Jayatilleke (with him Navaratnam), for defendant, respondent.

May 4,1926. DALTON J.-

This appeal raises a question under the Prescription Ordinanace The plaintiff company claims from the defendant the sum of Rs. 3,271 "93, balance of sum due for goods sold and delivered. The last payment made by the defendant on account of his indebtedness was on February 24, 1923, and this action was commenced on November 26, 1924. The defendant pleaded the claim was prescribed under the provisions of section 9 of the Prescription Ordinance, 1871, where the term of prescription is one year. The plaintiff company, however, pleads the benefit of section 15, absence beyond the seas, whereby the term of prescription was prevented from running. The District Judge answered the only issue in the case," is the plaintiff's claim prescribed," in favour of the defendant, and the plaintiff now appeals. There is no finding as to whether or not the plaintiff company was residing in Ceylon, although it is found they were carrying on business here.

The evidence shows that the plaintiff company is registered in France. It has an attorney for the purposes of its business in India and Ceylon; he spends five to six months a year in Ceylon. It has no registered office here, and it is admitted there has been no compliance with any requirements of section 111 of the Joint Stock Companies Ordinance, 1861, in respect of foreign companies carrying on business in the I- land. The latter fact, however, is of course not corclusive that it has no place of business established in the Island,

for in practice the requirement of the law is frequently evaded, but it may be pointed out that the power of attorney (PI) definitely provided for the attorney carrying out the provisions of the law in this respec