Raman Chetty V. Renganathan Pillai

1927 Present: Dalton and Lyall Grant JJ.

RAMEN CHETTY v. RENGANATHAN PILLAI.

330-D. C. Colombo, 12,931.

Money Lending Ordinance-Pro-note as security for future loans-False statement as to capital sum borrowed-Height to relief-Inadvertence -Ordinance No. 2 of 1918, ss. 2, 10, 13.

A promissory note, given as security for future loans, which contains a false statement in regard to the capital sum actually borrowed, is not enforceable.

Where such a false statement was the result of a deliberate act and was not due to inadvertence, the Court is not empowered to grant relief Tinder section 10 (2) of the Money Lending Ordinance.

Wijesinghe v. Don Girigoris 2 over-ruled.

THE plaintiff sued trip defendants jointly and severally to recover the sum of Rs. 11,O8O alleged to be balance due to him on a promissory note for Rs. 100,000 made by them. The defendants pleaded that no money was paid to them on the note, which was given to the plaintiff as security for future advances. They also pleaded that under section 13 of the Money Lending Ordinance

1 25 L. J. Q. B. 310.  2 27 N. L. R. 342.

the note was " fictitious," and that the action could not be maintained. The learned District Judge held that the amount stated  as due was fictitious and that the note had not been filled in accordance with the requirements of section 10. He further held that this was a case in which the Court should give relief under section 10 (2) and entered judgment in favour of the plaintiff for the balance claimed, condemning him to pay the defendants' costs.

H. H. Bartholomeusz (with Garvin), for defendants, appellant.

Hayley (with Navaratnam), for plaintiff, respondent.

February 1, 1927. DALTON J.-

The plaintiff in this action sued the defendants jointly and severally to recover the sum of Rs. 11,080 and interest alleged to be the balance still due to him on a promissory note for Rs. 100,000 dated January 19, 1922, and made by them.

The note sued on, marked A, is in the following form: -

Colombo, January 39, 1922.

Capital bum borrowed:      Rs. 100,000.

Rs. 100,000.                     On demand we the undersigned jointly and
Interest, premium. or        severally promise to pay S. R. M.M. A.
charges deducted t paid   Raman Chetty or order the sum of Rupees
in advance: Nil                 One hundred thousand only, currency for
Rate of interest per           value received, with interest thereon at the
centum per annum;          rate of fifteen per centum per annum from the
15 per cent.                     date hereof.

Signed in Tamil.

Witnesses:
Signed in Tamil.

The defendants did not deny the making of the note, but they pleaded that no money was paid to them on the note, it being delivered to the plaintiff as security for further advances. They further denied that any sum was due by them on the note. They also pleaded that under section 13 of the Money Lending Ordinance the note was fictitious and the action could not be maintained, whilst the provisions of section 10 had not been complied with and the note was not enforceable.

The issues proposed to and accepted by the r-vial Judge were as follows: -

(1) Was the note (A) delivered by defendants to plaintiff as security for future transactions?

(2) Was the amount stated as due on the note (A) fictitious, and does the note contravene the provisions of section 13 of the -Money Lending Ordinance?

(3) Has the note been filled up in accordance with the requirements of section 10 of the Money Lending Ordinance?

(4) If not, can plaintiff maintain this action?

No issue was raised as to the amount of the balance due on the note, assuming that plaintiff could maintain his action. Plaintiff did seek to give evidence on that point, but objection thereto was taken on behalf of the defendant, the objection being upheld by the trial Judge. He admitted the evidence in so far as it went to elucidate the first issue, as to whe

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