Ferdinandus V. Municipal Council Colombo

1948 Present : Nagalingam J.
 
FERDINANDUS, Appellant, and MUNICIPAL COUNCIL, COLOMBO
Respondent.
 
S. C. 80-C. R. Colombo, 6,678

Municipal Councils Ordinance-Act done under provisions of the Ordinance Recovery of warrant costs-Prescription-Chapter 103-Sections 138 and 263.
 
Section 263 of the Municipal Councils Ordinance has no application unless the act which gives rise to the cause of action is one which falls within the express ambit of some provision of the Ordinance.
 
APPEAL from a judgment of the Commissioner of Requests, Colombo.
 
M. C. Abeywardene, for the plaintiff, appellant.
 
E. B. Wikramanayke, for the defendant, respondent.

Cur. adv. vult.

 June 30, 1948. NagalinGam J.-
 
The dispute between the parties to this case lies within a narrow compass and the point for determination is, whether the plaintiff's claim is barred by the provisions of section 263 of the Municipal Councils Ordinance. The facts as found by the learned Commissioner are briefly these : The plaintiff sent a blank cheque to the defendant Council in payment of the rates due by him in respect of certain premises, authorizing the Council to fill the cheque for the amount due, from him by way of 1(1937) 39 N.L.R.175.

rates thereon. The Council filled up the cheque for the amount which represented not only the rates proper but also included a sum of 10 per cent, on the rates on account of warrant costs. The plaintiff in this action sues for the recovery of the warrant costs which, he alleges, have been wrongfully charged to him. The circumstances under which the Council claims to have included the 10 per cent, warrant costs arise in this manner : The letter containing the cheque was posted by the plaintiff on October 30, 1947, and should have normally reached the Council at the latest by October 31. According to the Council, the cheque has in point of fact been received on November 1. It is common ground that if the rates had been paid before October 31, no warrant costs could be charged but that if payment was made after October 31, the Council would be entitled to levy warrant costs.
 
The learned Commissioner has found that the Council must be deemed to have received the cheque on or before October 31, and that the Council did not become entitled to claim warrant costs in consequence. The plaintiff's action, however, was dismissed on the ground that the action had not been instituted within three months of the date of the accrual of the cause of action as provided by section 263 of the Municipal Councils Ordinance. This section prescribes the time limit in regard to an action instituted against the Council for anything done or intended to be done under the provisions of the Ordinance.
 
Now, what is the act which was done by the Council which is questioned by the plaintiff ? The plaintiff has asserted the act to be the appropriation of his funds by the Council by riling in his cheque for an amount larger than was due from him. The real act that is in question is not the appropriation but the filling up of the cheque, for it is this act that has enabled the Council to appropriate the funds. Now, the act of filling up the cheque is not an act done in pursuance of the provisions of the Ordinance. It was an act done or purported to be done by the Council under the authority conferred on it by the plaintiff. The plaintiff's authority was limited to the filling up of the cheque for the amount of the rates and did not extend to filling it up for any other amount, much less to include any sum by way of warrant costs. This act of the Council was one done in excess of the authority conferred on it by the plaintiff and cannot be justified as done under any provision of the Ordinance. Section 263, therefore, has no application. The case of Perera v. Municipal Council, Kandy,1 supports the construction I have placed on this section. That was a case where the Muni

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