1929. Present: Dalton J. and Maartensz A.J.

SILVA v. SOMAWATHIE.

77-D. C. Badulla, 4,524.

Money Lending Ordinance-Promissory note-Money due on account stated-Partnership business-Ordinance No. 8 of 1918, s. 2.

Where a promissory note was given on an account stated between parties who had been carrying on business together.

Held, that the provisions of section 10 of the Money Lending Ordinance have no application to the note.

APPEAL from a judgment of the District Judge of Badulla.

Plaintiff sued to recover a sum of Rs. 1,922.85 with interest due on a promissory note from the defendant, who was the widow and administratrix of the estate of the maker of the note. It was stated that the note was given by the defendant's husband after accounts had been gone into between him and the plaintiff, who carried on a business together. It was alleged that the sum was found to be due to the plaintiff when the accounts were settled. The learned District Judge gave judgment for the plaintiff.

N. K. Choksy, for defendant, appellant.-The note is unenforceable as the marginal particulars are not set forth separately and distinctly, apart from the particulars in the body of the document itself. (Vadivelu v. Velupillai, [1 4 Law Recorder 143] Kadirsan Chetty v. Arnolis. [. 2 23 N. L. R. 162.] )

They must be stated apart from the particulars set out in the 1989. body of the note because the amount mentioned in the body of the note is not necessarily the amount actually borrowed. Nor Somawathie would the body of the note state what amount was deducted in advance.

Even though the point was not taken in the Court below, this Court will give effect to the objection, considering the scope and object of the provisions of the Ordinance. An analogous case is that of objections under the Business Names Ordinance-see Karuppen Chetty v. Harrisons & Crosfield, Ltd [1 24 N. L. R. 317.].

Counsel also referred to Sannitamby v. Nogan, [2 26 N. L. R. 217.] Wijeysinghe v. Don Girigoris [3 27 N. L. R. 342], and Raman Chetty v. Renganathan Pillai [4 28 N. L. R., at 344.].

N. E. Weerasooria, for defendant, respondent.-The Money Lending Ordinance does not apply to the facts of this case as it is not a money lending transaction.

The Money Lending Ordinance is based on the Usury Act of the Cape Colony, No. 23 of 1908. Section 5 corresponds to section 10 of our Ordinance. Vide statement of objects and reasons of the Ordinance (Gazette of October 12, 1917, Part II., page 123).

In the case of Rex v. Goedhals and de Wet [5 26 S.C. 545.] it was held that the analogous provisions of the Cape Act did not apply to facts similar to those in this case.

Counsel also cited Vol. VI., Bissett & Smith's Digest, pages 401 and 402.

August 9, 1929. DALTON J.-

This is an action on a promissory note to recover the sum of Rs. 1,922.85 with interest thereon, in all the sum of Rs. 2,508.85. The defendant is the widow and administratrix of the estate of the alleged maker of the note.

The defence to the action in the lower Court was based upon the plea that the note was a forgery, but the trial Judge has come to the conclusion that this plea cannot succeed. The plea seems to be based upon the defendant's evidence that the signature to the note is not like her husband's signature and that he told her nothing of the debt. I see no reason to differ from the finding of the lower Court on this question of fact.

It has further been urged in appeal that the promissory note does not comply with the provisions of the Money Lending Ordinance, 1918, section 10 of which requires certain particulars in every promissory note to be set forth upon the document, otherwise it shall not be enforceable.

This point was not raised in the answer or in the issues, although plaintiff did plead in his plaint (paragraph 4) that he accepted the promissory note " without the marginal notes," bona fide and Somawathie inadvertently, and