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MATHER v. SOMASUNDERAM et al.
NLR38V333
Present : Dalton
A.C.J, and Koch J.
MATHER v. SOMASUNDERAM et al.
66-D. C. Jaffna, 27,105.
Hire purchase
agreement-Agreement to pay monthly rent-Initial deposit- Termination of
agreement-Action for recovery of arrears-Claim to set of deposit.
Under a hire-purchase agreement the owner of a motor car hired it in
consideration of an initial deposit of a certain sum and an undertaking by the
hirer to pay a monthly hire for a period of 24 months. The agreement further
provided that if the hirer failed to pay the hire for
any month on the due date, the
owner could, without any prejudice to his right to recover arrears of hire and
damages, terminate the hiring and retake possession of the car, and that in that
event the hirer should not on any ground whatever be entitled to any allowance,
credit, return, or set off for payment of hire previously made. Owing to the
default of the hirer in paying the monthly instalments the owner terminated the
agreement.
Held, (in an action by the owner to recover instalments of rent due under the
agreement) that the hirer was not entitled to set off the deposit against the
claim.
APPEAL
from a judgment of the District Judge of
Jaffna.
H. V. Perera (with him Kumarasingham), for defendants, appellant.
L. A. Rajapakse (with him H. W. Tambiah), for plaintiff,
respondent.
Cur. adv. vult.
July 9, 1936. KOCH J.-
The plaintiff sued the defendants on an agreement P 1 of September 28, 1929,
alleging that a sum of Rs. 932 was paid him in monthly instalments under the
said agreement and that a sum of Rs. 2,922.60, with interest at 9 per cent, per
annum, was due and owing to him. By this agreement the plaintiff agreed to let
to the first defendant a Pontiac Tourer Car in consideration of an " initial
deposit" by the first defendant of Rs. 1,072.50 and an undertaking on the part
of the latter to pay to the plaintiff a hire of Rs. 155.40 on October 28, 1929,
and regularly on the 28th day of each and every successive month for a period of
24 months. The agreement further provided that if the first defendant failed to
pay hire for any month on the due date, the plaintiff without any prejudice to
his right to recover arrears of hire and damages could terminate the hiring and
retake possession of the car, and also that in the event of the hiring being
terminated the first defendant should not on any ground whatsoever be entitled
to any allowance, credit, return, or set off for payment of hire previously
made.
It would therefore follow that if this so called " initial deposit" of Rs.
1,072.50 can be regarded as an advance hire-deposit, the first defendant will
not be entitled to credit in that sum in the event of the hiring being
terminated by the plaintiff as the result of a default on the part of the first
defendant".
There happened to be a clause in the typed form of this agreement, viz., 2 (a),
which runs thus :-
" That the hirer may at any time during the hire terminate the hiring by
delivering to the owners at Jaffna at his own expense the said .... in through
good order and condition."
Before P 1 was signed, however, that clause was deleted, the effect of which
deletion apparently was to prevent the hirer himself from terminating the
contract. P 1 further provided that at any time during the hire the first
defendant could become the purchaser of the aforesaid car on payment in cash of
the " endorsed price", viz., Rs. 4,802.10, provided he was not in default in
regard to the regular payments of hire due under the agreement. This was
followed by a clause that if such a purchase was effected credit will be given
for all payments of rent previously made under this agreement.
The second and third defendants
who are the appellants in this case signed the agreement as guarantors. It is
argued by Mr. H. V. Perera who appeared for them that they were therefore
entitled to advance every argument in their defence which the f
