Back
FERNANDO v. FERNANDO et al.
NLR36V77
1934 Present:
Garvin S.P.J.
FERNANDO v. FERNANDO et al.
86-C. R. Chilaw, 26,551.
Money
Lending Ordinance-Failure to state particulars in promissory note- Ignorance of
provisions of section 10-Inadvertence-Ordinance No. 2 of 1918, s. 10.
Failure to set forth in a promissory note the particulars required by
sub-section (1) of section 10 of the Money Lending Ordinance, through ignorance
of its provisions and not with any intention to evade them, would entitle a
person to the relief provided by sub-section (2) of section 10.
A promissory note, on which the particulars required by section 10, sub-section
(1), are not specified, is admissible in evidence in an alternative cause of
action on the money count.
THIS
was an action on a promissory note. The defendants
admitted the receipt of the capital sum, denied the agreement to pay interest
and pleaded that they had repaid the capital sum. They further pleaded that the
note did not comply with the requirements of section 10 (1) of the Money Lending
Ordinance.
It was contended on behalf of the plaintiff that he accepted the note which was
filled in by the makers in ignorance of the provisions of section 10 of the
Ordinance.
The learned Commissioner of Requests held that the plaintiff was not entitled to
relief under section 10 (2) of the Ordinance.
H. V. Perera (with him H. N. G. Fernando), for plaintiff, appellant.
The case of Sockalingam Chetty v. Ramanayake1[1 55 N. L. R. 33] has no
application; in that case the note was " fictitious " within the meaning of
sections 13 and 14 of Ordinance No. 2 of 1918. Section 10 contains no penal
provisions as does section 13. The only effect of section 10 is to make the note
itself unenforceable, and section 10 (2) makes provision for relief where the
omission of particulars was due
to " inadvertence". The meaning of the word " inadvertence" has received
judicial interpretation in the case of In re Piers, (1 Q. B. D. 6, at p. 61)
where Smith L.J. described it as denoting the "opposite of conscious
deliberation". Section 10 (2) makes a similar distinction by the use of the
words " and not to any intention to evade the provisions of this section". The
intention of the proviso was in fact to contrast an intentional with an
accidental failure to comply with section 10 (1). In Bhai v. John1[1 C. W. E. 50
at p. 52.], Shaw J. was of opinion that ignorance of the provisions of the
Ordinance might induce " inadvertence " within the meaning of the proviso to
section 10. In the present case the inadvertence was proved by the fact that the
amount was actually filled up by the defendant. Counsel also cited Ramen Chetty
v. Renganathan Pillai 2[2 28 N. L. R. 339].
L. A. Rajapakse, for defendant, respondent.-The word " inadvertence " conveys
the meaning that there was some fact within the knowledge of the person to which
he omitted to turn his mind. There can be no " inadvertence " where, as the
present plaintiff pleads, he was ignorant the provisions of the Ordinance. In
the alternative, the plaintiff cannot be heard to plead ignorance or mistake in
view of the evidence that he has frequently entered into transactions of this
sort. Counsel referred to Dewasurendara v. de Silva3[ 3 34 N. L. R. 313.], and
to Saminathan Chetty v. Widiyaratne4[ 4 34 N. L. R. 315.].
Cur. adv. vult.
September 6, 1934.
GARVIN S.P.J.-
This was an action on a promissory note. There was an alternative cause of
action on the money count. The defendants admitted the receipt of the capital
sum, denied that they agreed to pay interest and pleaded that they had repaid
the capital sum borrowed. They further took exception to the action on the
promissory note upon the ground that the note did not comply with the
requirements of section 10 (1) of the Money Lending Ordinance.
At the trial the following issues were framed: - (1) Is the promissory note sued
upon enforceable in law inasmuch as it d
