1942 Present: Jayetileke A.J.

PIYASENA v. UKKUWA.

67-C. R. Gampola, 5,416.

Agreement to pay money-Possession of land in lieu of interest-Agreement - non-notarial--Action to recover money-Proof of agreement-Prescription.
 
In an. action to recover money lent, an agreement by the borrower to pay the money and to allow the lender to possess a land in lieu of interest may be proved in order to prevent the running of prescription, although the agreement is non-notarial,

Nagamuthu v. Sittambarampillai (33 N. L. R. 151), followed.

APPEAL from a judgment of the Commissioner of Requests, Gampola.

E. B. Wickremanayake (with him M. M. Kumarakulasingham), for plaintiff, appellant.

No appearance for defendant, respondent.

Cur. adv. vult.

July 7, 1942. JAYETILEKE A.J.

The plaintiff has brought this action to recover from the defendant a sum of Rs. 30, which he alleges he lent to the defendant on a document P 1, together with a sum of Rs 5 as interest. The document which is in the Sinhalese language has been translated as follows:

The purport of the promissory note written - and granted on this 7th day of June, 1925, is as follows: I, the under-signed, Udage Ukkuwa of Deluntalamada in Rambode korale, being in need of money have borrowed and received without deficiency the sum of rupees thirty of lawful money of Ceylon from G. M. Piyasena of the said korale and in lieu of interest of the said sum it is agreed that the income and produce of the western one pela paddy sowing extent of the field called Bitterapola belonging to me, the said Ukkuwa, shall be taken by him. If I do not pay the said sum and get this note redeemed I do hereby agree to be bound by the law.

To this effect                                                                                                                    On a six cent stamp.
                                                                                                                                                        30.
                                                                                                                                                    Ukkuwa.

1. Signed. K. U. G. Gunaratne Vidane                                                                                                        1925.7

2. Signed. W. P. Hinni Appuhamy."

Though the body of the document is prefaced by the expression promissory note", the plaintiff has treated the document not as a promissory note but as an agreement in writing to pay money. He may have done so because it does not contain an absolute promise to pay money. In the concluding part of the document, the defendant has agreed to be bound by the law if he failed to pay and redeem the note. There is, it seems to me, necessarily implicit in that agreement a promise by the defendant to pay the amount that is due.

The defendant, among other defences, pleaded that the document on which the action was brought was obnoxious to the provisions of section 2 of the Prevention of Frauds Ordinance (Cap.57) and that no. action could be maintained on it.

The plaintiff, thereupon, amended his plaint and claimed in the alternative the said sum of Rs. 30 as money lent and advanced by him to the defendant. That claim was based on the lenders' right to maintain an action to recover the amount lent by him independently of any writing he may have obtained from the borrower. .

At the trial the defendant suggested the following issues:

(1) Can the plaintiff maintain this action on the document in question, dated 7. 6. 25 ?

(2) Does the document in question contravene -the provisions of Ordinance No.. 7 of 1840 ?

(3) Is the document properly stamped?

(4) Can the document be tendered in evidence in this case?

(5) Is the claim in the document prescribed?

The Commissioner adopted the said issues and made the following note in the record

"At this stage the proctors agree to drop Is