Sabaratnam Et Al., V. Indo Lanka Provident Insurance Co.,

1947 Present: Soertsz S.P.J and Nagalingam J.
 
SABARATNAM et al., Appellants, and INDO LANKA PROVIDENT INSURANCE CO., MADRAS,
Respondent.
 
S. C. 202-D. C. Point Pedro, 2,103

    Money lending-What constitutes it-Must be business-Books of account-Money Lending Ordinance, section S.
 
Occasional and disconnected loans do not constitute money lending-. It must be a business and requires system, repetition and continuity.
 
APPEAL from a judgment of the Additional District Judge, Jaffna.
 
H. V. Perera, K.C., with S. J. V. Chelvanayakam, K.C., P. Navaratnarajah and C. Shanmuganayagam, for the defendants, appellants.
 
N. E. Weerasooria, K.C., with H. W. Tambiah and W. D. Gunasekera, for the plaintiff, respondent.

Cur. adv. vult.

December 10, 1947. NAGALINGAM J.-
 
This is an appeal from a judgment of the Additional District Judge of Jaffna entering a hypnotherapy decree against the defer dents in favour of the plaintiff, a company in liquidation suing by its official receiver and liquidator duly appointed in that behalf.
 
Save for the production of the mortgage bond admittedly executed by the defendants, the plaintiff has not been able to place evidence before Court of any of the circumstances attending and relevant to its execution or the nature of the consideration that passed from the plaintiff to the defendants in respect of it. The managing director of the plaintiff company who negotiated this transaction is dead ; and all the documents

and books of the plaintiff company were kept and maintained at its Head Office in Madras and are now in the custody of the official receiver appointed by the Court in Madras. The Ceylon liquidator explained his inability to place any such evidence by stating that the official receiver at Madras was not co-operating with him inasmuch as he had declined to consent to pool the assets in Ceylon with those in India for the common benefit of both Indian and Ceylon creditors as in his view such a course would have been detrimental to the interests of the Ceylon creditors. But whatever differences there may be between the official receiver in Madras and the. Ceylon liquidator, those differences have no bearing upon the adjudication of this action against the defendants.
 
The first defendant, however, testified and gave his version as to how he and his wife, the 2nd defendant, came to execute the bond sued upon in. favour of the plaintiff company. The defendants also called witnesses to support the case presented by them. According to the 1st defendant, he had recommended one M. Ramanathan to the plaintiff company's managing director for a loan of Rs. 11,000 on the understanding that Ramanathan should repay the loan within three months and that he should mortgage his properties in Ceylon. The 1st defendant avers that in pursuance of his recommendation the plaintiff company lent to Ramanathan a sum of Rs. 11,000 and obtained from him a personal bond to repay the loan within three months, with a covenant attached that he would mortgage his properties in Ceylon. Ramanathan, after receiving the loan in Madras, is said to have left for Malaya. The loan was granted somewhere in May or June, 1937, and Ramanathan failed either to repay the loan within the time stipulated or even to hypothecate his properties. Thereupon the managing director of the plaintiff company called upon the 1st defendant to pay the amount of the debt due from Ramanathan, but the first defendant says that as he was not in a position to pay the amount lie undertook to execute a mortgage bond on condition that the plaintiff company assigned Ramanathan's bond to that the managing director of the plaintiff company consent the mortgage bond sued upon was executed in bond has not in fact been, assigned to the 1st the defendants contend that no obligation attaches on the condition upon which the bond was executed has not be.
 

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