1943 Present: Howard C.J. and Keuneman J.

NADAR,
Appellant, and FONSEKA, Respondent.

346-D. C. Chilaw, 11,687.

Agreement to pay money-Promise implied by terms of document-Acknowledgment of debt-Prescription Ordinance (Cap. 55) s. 6.

A document in which the defendant states that he has " borrowed and received in full from--, the sum of Rs. 275 of lawful money of Ceylon,  having promised to pay interest at the rate of 15 per cent, per annum until the sum is paid in full" contains an implied promise to pay the sum borrowed and is a contract, agreement or bargain to pay money within the meaning of section 6 of the Prescription Ordinance.

APPEAL from a judgment of the District Judge of Chilaw. The facts appear from the head-note and the argument.

N. Nadarajah, K.C. (with him E. B. Wickremenayake), for the plaintiff, appellant.-Document P 1 constitutes a contract in writing and the period of limitation is six years, under section 6 of the Prescription Ordinance (Cap. 55). There is a clear acknowledgment of debt and an implied promise to pay. See Urban District Council, Matale v. Sellaiyah[ (1931) 33 N. L. R. 14.] Sonnadara v. Weerasinghe[ (1932) 1 C. L. W. 328.], Mohideen v. Bandara[ (1919) 6 C. W. R. 188.], Rodrigo v. Jinasena & Co,[ (1931) 32 N. L. R. 322.]. The English authorities are all reviewed in Spencer v. Hemmerde[ L. R. (1922) 2 A. C. 507.].

H. V. Perera, K.C. (with him Sam P. C. Fernando), for the defendant, respondent.-The decision of the Divisional Bench in Dawbarn v. Ryall[ (1914) 17 N. L. R. 372.] is the basis for all later judgments. A written contract cannot be implied by way of an inference of fact. The question is whether a contract can be implied in law. A bare memorandum in writing is sufficient to make a written contract only where it was given in pursuance of a prior oral agreement. In the present case there was no such prior agreement.

A promise in writing must be contained in words of promise. There are no words of promise in P 1, nor is P 1 referable to any other document containing a promise. P 1 is nothing more than a record of a previous transaction, and the District Judge's analysis of it is correct.

N. Nadarajah, K.C., in reply.-There is no difference, in effect, between a promise by inference and a promise implied by law-Caddick v. Sfcidmore7[ (1857) 44 E. R. 907 at 908.]; Walter Pereira's Laws of Ceylon (1913) p. 620; Chitaley & Rao's Commentary on the Indian Civil Procedure Code, Vol. 2, p. 1736.

Cur. adv. vult.

 November 3, 1943. HOWARD C.J.-

In this case the plaintiff appeals from the decision of the District Judge of Chilaw dismissing his action with costs. The only question that arises for consideration is whether the document P1 can be regarded as a written contract, agreement or bargain under which the defendant agreed to pay a sum of Rs. 275 with interest at 15 per cent. This document was made on April 1, 1936, in favour of one Soona Yana Isak Nadar, was endorsed on October 7, 1940, to the plaintiff, a younger brother of Nadar, and the action was commenced on August 15, 1941. The learned Judge held that P 1 was not an, agreement falling within the provisions of section 6 of the Prescription Ordinance and the claim was therefore prescribed. In coming to this conclusion the learned Judge was influenced by the fact that P 1 did not contain a statement that the defendant promised to pay the sum of Rs. 275. In the body of the document the defendant states he has " borrowed and received in full from Soona Yana Isak Nadar the sum of Rs. 275 of lawful money of Ceylon, having promised to pay interest at the rate of 15 per cent, per annum until this sum is paid in full". In the margin it is stated as follows:-"Capital sum borrowed Rupees Two hundred and Seventy-five (Rs. 275)-No interest was deducted-Interest at the rate of fifteen (15) per centum per annum".

P 1 purports to be signed by the defendant in front of two wi