Sinnapillai V. Veeragathy Et Al.,

1937   Present : Moseley J. and

SINNAPILLAI v. VEERAGATHY et al

101-D. C. Jaffna, 9,078.

Money Lending Ordinance-Failure to keep books of account-Ignorance of the law-Meaning of " inadvertence"-Ordinance No. 2 of 1918, s. 8 (2) (a).

The proviso to section 8 (2) of the Money Lending Ordinance is intended to give relief not to a person who fails to keep books of account but to one who does keep such books but on a particular occasion, through an oversight, omits to record therein the details of a particular loan.

Semble, failure to keep accounts through ignorance of the provisions of the law does not amount to a default due to inadvertence within the meaning of section 8 (2) of the Ordinance.

Fernando v. Fernando (36 N. L. R. 77) and Dewasurendra v. de Silva {34 N. L. R. 313) referred to.

APPEAL from a judgment of the District Judge of Jaffna.

L. A. Rajapakse (with him Soorasangaram), for plaintiff, appellant. N. Nadarajah, for defendants, respondents.

 November 12, 1937. MOSELEY J.

This was an action on a mortgage bond, and as the trial was nearing conclusion the following additional issues were framed : -

(4) On plaintiff's evidence is he a person who carries on the business of money lending within the meaning of section 8 (1) of the Money  Lending Ordinance ? ,

(5) If so, can he maintain the action ?

It must be conceded that the phraseology leaves something to be desired, and it would have been better if issue No. 5 had referred to the plaintiff's admitted failure to comply with the requirements of the said subsection. Counsel for the plaintiff objected to the addition of these issues, but his objection was overruled and I do not think that the plaintiff was unduly prejudiced either by the belated introduction of the issues or by the omission to which I have referred.

The learned District Judge found against the defendants upon the other issues but held that the plaintiff was a person carrying on the business of money lending within the meaning of section 8 (1), and found further that his omission to keep books was not due to inadvertence and that he was not therefore entitled to relief against his default. He accordingly answered issue No. 5 in the negative and dismissed the plaintiff's action. Against that order the plaintiff has appealed.

As to whether or not he is a person 'who carries on the business of money lending, the only evidence is that of the plaintiff himself. He is a school teacher, and said " I lend money also ". In cross-examination he added "I do a small business in money lending. I lend money on mortgage bonds and promissory notes. I have no account books .... I have invested Rs. 6,000 to Rs. 7,000 on nearly fifteen bonds. I have ten or twelve promissory notes for an aggregate amount of about Rs. 1,500 . . . .I have been doing this for the last twenty or fifteen years. I did not know it was necessary to keep account books ". On that evidence I do not know how the District Judge could have come to any other conclusion than that the plaintiff was a person carrying on the business of money lending within the meaning of the sub-section. Admittedly he keeps no books. It follows that he has failed to comply with the requirements of the sub-section.

For the sake of convenience I will set out section 8, which is as follows: -

"8 (1) A person who carries on the business of money lending, or who advertises or announces himself or holds himself out in any way as carrying on that business, shall keep or cause to be kept a regular account of each loan, clearly stating in plain words and numerals the items and transactions incidental to the account, and entered in a book paged and bound in such a manner as not to facilitate the elimination of pages or the interpolation or substitution of new pages.

(2) If any person, subject to the obligations of this section, fails to comply with any of the requirements thereof, he shall n

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