Chatoor V. General Assurance Society, Ltd.

1954 Present: Nagalingam S.P.J. and Fernando A.J.

A. S. CHATOOR, Appellant, and GENERAL ASSURANCE
 SOCIETY, LTD., Respondent

S. C. 103 Inty.-D. C. Colombo, 27,216 M
 

Interrogatories-Use thereof to obtain admissions.

Interrogatories may be administered in order to enable the party interrogating to ascertain what the case is he has to meet or what really are the matters in issue.

Plaintiff, an insurance company, instituted action for the recovery of a certain sum of money against the defendant who,at the dates material to the action, held its power of attorney as chief agent -in Ceylon. One cause of action

proceeded on the basis that the defendant had authority to effect covernates and to issue policies of insurance thereon on behalf of the plaintiff company. Without any averment to the contrary and without even a suggestion of impropriety on the part of the defendant in effecting a cover note and issuing certain policies in pursuance of the cover, plaintiff suddenly made allegations of fraud and illegality on the part of the defendant in effecting the cover and issuing the policies.

Held, that, in order to prevent any surprise at the trial, the defendant was entitled to administer interrogatories for the purpose of ascertaining the facts and circumstances upon which the plaintiff made the allegations of illegality and fraud.

APPEAL from an order of the District Court, Colombo.

E. G. Wikramanayake, Q. C., with Walter Jayawardene, K. Shinya and M. Hussein, for the defendant appellant.

N. E. Weerasooria, Q .C., with S. J. Kadirgamar, B. S. C. Ratwatte and A. de Vos, for the plaintiff respondent.

Cur. adv. vult.

December 20, 1954. NAGALINGAM S.P.J.-

This is an appeal from an order of the learned Additional District Judge of Colombo upholding the refusal of the plaintiff company to answer certain interrogatories administered to it by the defendant.

The action was filed by the plaintiff company which carries on business as an Insurer for the recovery of a sum of Its. l,358,437.50 against the defendant, who at the dates material to the action held its power of attorney as chief agent in Ceylon. Several causes of action were set out in the plaint of which it is only necessary to notice the first, second and third for the purposes of this appeal.

In the first cause of action the plaintiff company averred that the defendant, acting as its agent, effected a cover note for his own benefit, to the extent of Rs. 3,500,000,in respect of a shipment of rubber, and that in pursuance of the cover effected, the defendant issued three policies of marine insurance to himself under his business name of A. S. Chatoor & Co. and that the plaintiff company became entitled to receive from the defendant premia payable in terms of the said policies of insurance amounting to a sum of Rs. 311,344.50. It would be manifest, having regard to these averments, that the plaintiff company's claim is based on the tacit recognition of the right of the defendant to have effected cover and to have issued the policies on behalf of the plaintiff company.

Under the second cause of action, the plaintiff company sets out that the defendant, after having paid the sum of Rs. 311,344.50 to the plaintiff company's account at its bank as premia due to it in respect of the policies of insurance issued by the defendant, " wrongfully, unlawfully and fraudulently withdrew the said sum and appropriated it to himself "The plaintiff company proceeded further to set out that " there was fraud and illegality on the part of the defendant in effecting and issuing the said insurance policies ".

In the third cause of action, the allegation was that the defendant effected the insurance at the rate of ten per cent., while the true and proper rate should have been 40 1/4 per cent., and that the defendant in effecting the insurance at the lower rate, did so for his own benefit and " acted

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