1933 Present : Macdonell C.J.

DEWASURENDRA v. DE SILVA.

36-C. R. Galle, 11,737.

Money lender-Business of money lending-Systematic and continuous- Failure to keep books-Money Lending Ordinance, No. 2 of 1918, s. 8.

Where a person supplemented his income by money lending, which was proved to be systematic and continuous,-

Held, that he was carrying on the business of money lending.

Where the failure of a money lender to keep books of account was an act of deliberate omission,-

Held, that such failure cannot be said to be due to inadvertence within the meaning of the proviso to section 8 (2) of the Money Lending Ordinance.

THIS was an action to recover money due on a promissory note. Plaintiff, who was a man of means, supplemented his income by investing in loans. The question was whether plaintiff was carrying on business as a money lender within the meaning of section 8 of Ordinance No. 2 of 1918, and, if so, whether the note was unenforceable in view of his failure to keep books of account. The learned Commissioner of Requests held that the plaintiff was not a money lender within the meaning of the Money .Lending Ordinance.

L. A. Rajapakse (with him S. Alles and J. R. Jayewardene), for defendant-appellant.-Whether plaintiff is a money lender or not is a question of fact. Evidence clearly shows plaintiff has lent money on about twenty occasions within 2 years. Therefore a certain degree of system and continuity can be seen in the transactions. They are not isolated transaction. (Fagot v. Fine [1 205 Law Times 583. ]) Once this onus is discharged by defendant, then plaintiff is a money lender, and action is unenforceable unless he comes under section 8 (2) (a) and (b) of Ordinance No. 2 of 1918. Onus is then on plaintiff. He must prove both (a) and (b). These are' not alternative provisos. (218 - D. C. Colombo, 29,912; 18.12.129). See also Ramen Chetty v. Renganathan Pillai [2 28 N. L. R. 339. ] The word " inadvertence " was interpreted in those cases. Plaintiff's statement that he was ignorant of the law and did not keep books is so excuse; that is not inadvertence.

Nadarajah (with him E. B. Wikremanayake), for plaintiff-respondent.- Money Lending Ordinance is aimed primarily at money lenders like Afghans and Chetties. Whether any other person is a money lender is a question of fact. Plaintiff, a Sinhalese landed proprietor, supplemented his income by occasional loans on mortgage bonds and promissory notes. His chief occupation is not money lending (Newton v. Pyke [3 (1908) 25 Times, Law Reports 12. see extract in 35 Empire Digest , p. 202, s. 282.]).

Plaintiff in any case can come under provisos in section 8. Re proviso (a) plaintiff was not aware of the law and did not keep books; that is inadvertence.

Rajapakse, in reply, cited Edgelow v. MacElwee [1 (1918) 1 K. B. 205.]

March 8,1933. MACDONELL C.J.-

This case was before the Court on a previous occasion but was sent back to the learned Commissioner to ask him to take certain additional evidence so that it might be decided whether the plaintiff was or was not carrying on the business of a money lender at the time of bringing this action.

At the first hearing before the learned Commissioner he was satisfied on the facts that the amount claimed by the plaintiff was really owing by the defendant. That is a finding on fact from evidence before him upon which I do not propose to comment, because I think the case can be decided independently of that finding of fact.

The point taken both at the trial, since it is specially mentioned in the issues, and also in this appeal, is that the plaintiff carries on the business of a money lender within section 8 of Ordinance No. 2 of 1918, but that he has not kept a regular account of his loans entered up in a book such as that section requires. If the plaintiff is carrying on the business of a money lender and has not kept a proper book as required b