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SINNIAH CHETTY v. SILVA et al.
NLR31V69
1929. Present:
Dalton and Drieberg JJ.
SINNIAH CHETTY v. SILVA et al.
57-D. C. (Inty.) Colombo, 27,859.
Agency-Authority to sign
cheques-Termination of authority-Burden of proof-Evidence Ordinance, s. 69.
The plaintiff sued the first defendant on cheques drawn by a person who was
alleged to be defendant's agent. In obtaining leave to defend the action, the
defendant filed an affidavit in which he admitted that the drawer of the cheques
was his agent some time previous to the date at which the cheques were issued.
Held, that the burden of proving that the authority of the agent
had terminated was upon the defendant.
PLAINTIFF sued the
defendants on three cheques drawn on the Mercantile Bank of India, Kandy, for
the sums of Rs. 1,500, Rs. 1,000, and Rs. 2,500, dated January 18, January 25,
and January 27, 1928, respectively, and signed " V. Silva & Co., D A.
Ameresekere, Manager." First defendant asked for leave to defend the action and
filed an affidavit in support of the application. There he denied that he made
or signed the cheques, but admitted that he carried on business under the name
of V. Silva & Co., and that at one time he had a business at Nawalapitiya under
the management of one D. A. Ameresekere, in connection with which he opened an
account in the Mercantile Bank, Kandy. The branch, however, was closed in
October, 1926. Leave to defend was granted and at the trial the first issue
framed was "Did D. A. Ameresekere sign the cheques sued on ?" After argument the
learned District Judge held that the burden of proving the agency of.
Ameresekere to sign cheques for the firm was on the plaintiff.
Keuneman (with Canekeratne), for plaintiff, appellant.
H. V. Perera (with Croos da Brera), for defendants, respondent,
June 20, 1929. DALTON J.-
The sole question that arises on this appeal is as to where the burden of proof
lay.
Plaintiffs sued the defendants on three cheques alleged to have been made by
first defendant and endorsed by the second defendant. The cheques were drawn on
the Mercantile Bank of India.
Kandy, for the sums of Rs. 1,500, Rs. 1,000,
and Rs. 2,500. and . dated January 18, 25, and 27, 1928, respectively, and are
signed
" V. Silva & Co., D. A. Ameresekere, Manager. "
Defendant asked for leave to defend the action, and filed an affidavit in
support of his application. Therein he denied that he made or signed the
cheques. He admitted, however, that he carried on business under the name of V.
Silva & Co., and that " at one time " he did have a branch business at
Nawalapitiya under the management of one D. A. Ameresekere, in connection with
which branch he opened an account in the Mercantile Bank, Kandy. D. A.
Ameresekere as manager was authorized to operate on that account by signing and
issuing cheques in the form in which the cheques sued on purported to be signed
for the purpose of making payments in the ordinary course of business of the
branch. The branch was, however, he sets out, closed and that authority came to
an end in October, 1926.
Leave to defend was thereon granted and answer was filed. Numerous issues were
framed, the first issue being " Did D. A. Ameresekere sign the cheques sued on
?"
Thereupon argument proceeded as to where the burden of proof lay in respect of
the alleged agency of Ameresekere to sign cheques for the firm. Counsel for
plaintiff urged that what he had to do, at any rate at the commencement, was to
satisfy the Court on the first- issue, apparently relying upon the admissions in
the affidavit. upon which leave to defend was granted. The trial Judge held that
his contention that the burden of proving that Ameresekere had no authority to
issue the cheques in question was on the first defendant was wrong. He aids that
where the agent has been dismissed and a considerable period of time has elapsed
he was of opinion that the burden of proving " that plaintiff dealt with
Amereseker
